f- 


K<? 


SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 

GIFT  OF 

Roscoe  Pound 


« 

CORRBCTIOXS 

Page  27,  17th  line  from  bottom,  for  deductible,  read  drdurihJr. 

Page  39,  15tli  line,  for  ivith,  read  the. 

Page  60,  4th  line  from  bottom,  for  1879,  read  179S. 

Page  114,  Prescription  Act,  §  2,  remove  over,  from  2d  line  and  place 

it  in  3d  line  after  upon. 

Page  121,  interchange  7tli  and  Sth  lines. 

Page  161,  4th  line  from  bottom,  insert  feet,  after  twenty-eight. 

Page  179,  3d  line  from  end  of  Slrrpcr  v.  Laconia,  for  50,  read  5.'/. 

SELECT  CASES 

AND   OTHER  AUTHORITIES  OX   THE   LAW   OF 

CONVEYANCES 

AND   RELATED    SUIJJECTS 


BY 

JOSEPH  WARREN 

BUSSET  PROFESSOR   OF    LAW    IN    HARVARD    UNU'ERSITY 


LANGDELL  HALL,   CAMBRIDGE 

PUBLISHED   BY  THE   EDITOR 

1922 


T 


Copyright,  1922 
By  Joseph  Warren 


THE   PLIMPTON  PRESS 
NORWOOD  •  MASS  •  U  •  S  •  A 


PREFACE 

This  collection  is  designed  for  a  course  of  thirty-two  lectures  for 
second-year  law  students  who  have  already  completed  Professor 
Edward  H.  Warren's  Cases  on  Property  or  its  equivalent.  It  is 
not  expected  that  all  the  material  here  printed  can  be  covered.  A 
judicious  selection  must  be  made. 

The  generosity  of  Professor  John  C.  Gray  has  made  available 
the  second,  third,  and  sixth  volumes  of  his  case-books  on  Property; 
and  the  editor  has  made  such  free  use  of  this  material  that  the 
majority  of  cases  here  appearing  have  been  taken  from  those  collec- 
tions, and  the  scheme  of  the  third  volume  has  been  followed  to  a 
considerable  extent.  Several  of  Mr.  Gray's  longer  notes  have  been 
reprinted  here.  The  source  of  such  notes  is  duly  indicated.  The 
editor  has  also  had  placed  at  his  disposal  the  MS.  notes  and  abstracts 
which  Mr.  Gray  carried  with  him  to  the  class  room.  It  is  difficult 
to  estimate,  much  more  to  point  out,  to  what  extent  the  editor  has 
been  assisted  by  these  memoranda.  It  has  been  his  attempt  to  follow 
Mr.  Gray's  work  whenever  possible  rather  than  to  try  to  find  another 
arrangement  of  equal  value.  His  debt,  therefore,  is  a  very  large 
one. 

The  editor  has  also  had  the  benefit  of  the  advice  of  many  of  the 
teachers  of  Property  throughout  the  country,  with  whom  he  has 
corresponded  or  conversed  before  collecting  the  authorities. 

JOSEPH   WARREN 
Cambridge,  February  1,  1922. 


7927fl8 


TABLE   OF  CONTENTS 

Table  op  Cases viii 

Table  op  Statutes xi 

CHAPTER   I 

Accretion 1 

CHAPTER   n 

Lapse  of  Time      25 

Sec.  1.   Statutes  of  Limitation 25 

A.  Statutes 25 

England 25 

Illinois 26 

New  York 30 

B.  Operation  of  the  Statute 32 

C.  Disseisin  and  Adverse  Possession 38 

Note  on  Disseisin  by  Election 41 

Note  on  Conveyance  by  the  Owner  of  Lands  which  are 

in  the  Adverse  Possession  of  Another 67 

D.  Constructive  Fossessio7i      68 

E.  Tacking  Interests 80 

F.  Disabilities      90 

Sec.  2.    Prescription 95 

CHAPTER   HI 

The  Form  of  Conveyances     144 

Note  on  Conveyances  by  Record 144 

A.  Fines  and  Recoveries 144 

B.  Public  Grants 145 

Note  on  Conveyance  by  Special  Custom 145 

Sec.  1.    Conveyances  to  Strangers 146 

Sec.  2.    Releases 150 

Sec.  3.    Surrenders 154 

Note  on  Exchange 155 

Note  on  Form  of  Conveyance 155 

Note  on  Recital  of  Consideration      156 

CHAPTER   IV 

Description  op  Property  Grantted       158 

Sec.  1.    Land  not  Appurtenant  to  Land 158 

Sec.  2.    Boundaries 161  , 

A.  In  General 161 

B.  On  Water 173 

C.  On  Ways.  Note 180 

V 


Vi  TABLE    OF    CONTENTS 


CHAPTER   V 

Estates  Created 183 

Sec.  1.   Estates  in  Fee  Simple      183 

Sec.  2.   Estates  Tail 186 

Sec.  3.   Estates  for  Life 188 

Sec.  4.   Estates  for  Years  and  at  Will 193 

Note  on  Statute  Merchant,  Statute  Staple,  and  Elegit     .    .    .  194 

CHAPTER   VI 

Landlord  and  Tenant 197 

Sec.  1.   The  Making  of  Leases 197 

Form  of  Lease  in  Massachusetts 197 

Sec.  2.    Covenants.   And  herein  of  Permissive  Waste      230 

Sec.  3.   Rents      266 

A.  In  general 266 

Note  on  Assumpsit  for  L"se  and  Occupation 296 

B.  Apportionment,  Suspension,  and  Extinguishment      ....  303 
Sec.  4.   Termination  of  the  Relation 372 

CHAPTER   VII 

Joint  Ownership      421 

Note  on  Actions  by  Joint  Owners  against  Third  Persons 428 

Note  on  Joint  Ownership  in  Personal  Property 470 

CHAPTER   VIII 

Creation  of  Easements  and  Profits 471 

Sec.  1.    By  Implication 471 

Sec.  2.   By  Reference  to  Previous  Use 528 

Sec.  3.   By  Words  of  Reservation  or  Exception 538 

CHAPTER   IX 

Covenants  for  Title 553 

Note  on  the  L^sual  Covenants      553 

A.  In  General 5oo 

B.  Broken  Covenants 565 

C.  Covenants  by  Strangers  to  the  Title 586 

CHAPTER  X 

Execution  of  Deeds 601 

Sec.  1.   Signing  and  Sealing 601 

Sec.  2.   Dehvery 612 

Note  on  Cancellation  of  Deeds 665 

CHAPTER  XI 

Registration 666 

Sec.  1.   Statutes 666 

Sec.  2.   Registration  as  Notice 670 

Sec.  3.   Postponement  to  Unrecorded  Deeds 691 

Sec.  4.   Registration  not  in  Chain  of  Title 737 

Sec.  5.    Marshalling J48 

Note  on  the  Torrens  System 759 


TABLE    OF    CONTENTS  vil 

CHAPTER   XII 

Estoppel  by  Deed 762 

CHAPTER   XIII 

Dedication 788 

Abstract  of  Title  in  Massachusetts      799 

Index 805 


TABLE   OF  CASES 


Adams  v.  Burke 389 

Agricultural  Bank  v.  Rice    .    .    .  604 

Anderson  v.  Bloomheart  ....  516 

Andrew  v.  Pearce 588 

Andrews  v.  Needham 266 

Angus  V.  Dalton 97 

Archer  v.  Bennett 158 

Ards  V.  Watkins 294 

Ashcroft  V.  Eastern  R.  R.  Co      .  541 

Auer  V.  Penn 398 

Ayer  v.  Philadelphia  Co.      .    .    .  783 

Bailey  v.  Carleton 71 

Baker  v.  Snavely 628 

Barlow  v.  Wainwright 214 

Barney  v.  McCarthy 681 

Bartlet  v.  Harlow 421 

Baxter  v.  Bradbury 771 

Beal  ;;.  Boston  Car  Spring  Co.    .  366 

Beddoe  v.  Wadsworth 588 

Bedford  v.  Backhouse 670 

Beeson  v.  Burton 190 

Blades  v.  Blades 700 

Blanchard  r.  Ellis 774 

Blunden  v.  Baugh 39 

Board  of  Education  v.  Hughes    .  737 

Bond  V.  O'Gara 44 

Booth  V.  Starr 555 

Boyd  V.  Slay  back 653 

Braythwayte  v.  Hitchcock  .    .    .  209 

Brown  v.  Alabaster 500 

Calvert  v.  Aldrich 447 

Carbrey  v.  Willis 497 

Carmody  v.  Mulrooney    ....  141 

Catlin  V.  Ware 603 

Chaudoir  v.  Witt 615 

Christopher  v.  Austin 331 

Cibel  and  Hills  Case 329 

Cincinnati  v.  White 788 

Clark  V.  Cogge 472 

Clark  V.  Swift 576 

Codman  v.  American  Piano  Co.  252 

Cole  V.  Kimball 5S0 

Cooch  V.  Goodman 601 

Cook  V.  Brown 641 

Cook  V.  McClure 22 

Countess  of  Shrewsbury's  Case  .  244 


Curtis  V.  Galvin 224 

Curtis  V.  Lyman 677 

Dalton  V.  Fitzgerald 48 

Daniel  v.  North Ill 

Day  V.  Munson 748 

Dee  V.  King 543 

Deerfield  v.  Arms 13 

Dewing  v.  Dewing 445 

Dodd  V.  Acklom 390 

Doe  d.  Carter  v.  Barnard    ...  80 

Doe  d.  Christmas  v.  Oliver      .    .  763 

Doe  d.  Garnons  v.  Knight  .    .    .  617 

Doe  d.  Graves  v.  Wells     ....  53 

Doe  d.  Murrell  v.  IVIilward  .    .    .  375 

Doe  d.  Parker  v.  Gregory    ...  60 

Doe  d.  Souter  v.  Hull 58 

Doe  d.  Thomson  v.  Amey    .    .    .  207 

Doe  d.  Tilt  I'.  Stratton     ....  211 

Dougal  i\  McCarthy 200 

Dow  V.  Whitney 698 

Dyett  V.  Pendleton 334 

Earle  v.  Arbogast 245 

Earle  v.  Fiske 691 

Egerton  v.  Page 340 

Ellis  V.  Paige 218 

Emson  v.  Polhemus 463 

Erck  V.  Church 86 

Fanning  v.  Willcox 82 

Fay  V.  Brewer 252 

Fenner  v.  Blake 377 

Fifth    Ave.    Bldg.    Co.    v.    Ker- 

nochan 309 

Foster  v.  Wright 7 

Frost  V.  Beekman      675 

Geiszler  v.  De  Graaf 582 

George  v.  Kent 726 

George  v.  Wood 688 

Gifford  V.  Yarborough 1 

Gott  V.  Gandy 235 

Graves  v.  Graves 674 

Gray  v.  Kaufman  Co 404 

Grecnby  v.  Wilcocks 572 

Griswold  v.  Butler 90 

Grube  v.  Wills 63 


TABLE    OF    CASES 


Hall  V.  Eaton 

Hall  V.  Harris 

Hall  V.  Piddock 

Hamerton  v.  Stead 

Harper  v.  McMahon 

Hart  V.  Windsor 

Haverhill  Savings  Bank  v.  Grif- 
fin     

Henderson  v.  Eason 

Higbee  Club  v.  Atlantic  City  Co  . 

Hildreth  v.  Googins 

Hoby  V.  Roebuck 

Hopkins  v.  Murphy 

Horn  V.  Beard 

Howland  v.  Coffin 

Hoyt  V.  Dimon 

Hughes  V.  Graves 

Hughes  V.  Robotham 

Hunt  V.  Cope 


Ingalls  V.  Hobbs 
Izon  V.  Gorton    . 


Jackson  d.  Gilliland  v.  Wood- 
ruff   

Jackson  d.  Hasbrouck  v.  Ver- 
milyea 

Johnson  v.  Jordan 


Kay  V.  Oxley 

King  V.  Jones 

Kingdon  v.  Nottle 

Kingdon,  Executor  v.  Nottle 
Kirby  v.  Tallmadge  .... 
Kirkpatrick  v.  Mathiot  .  . 
Knowles  v.  Toothaker  .    .    . 


Lamb  v.  Crosland  .  .  . 
Larsen  v.  Peterson  .  .  . 
Leavitt  v.  Fletcher  .  .  . 
Lerned  v.  Morrill  .... 

Lewes  v.  Ridge 

Lewis  V.  Baker 

Lord  Say  and  Seal's  Case 
Lucy  V.  Levington  .  .  . 
Lyon  V.  Reed 


Marks  v.  Sewall.  .  .  . 
Marshall  v.  Moseley 
Marshall  v.  Roberts  .  . 
Mayham  v.  Coombs  .  . 
Maynard  v.  Maynard  . 
McCardell  v.  Williams 
McClurg  V.  Price  .  .  . 
M' Murphy  v.  Minot.  . 
McQuade  v.  Wilcox  .  . 
Middlemore  v.  Goodale 
Miller  v.  Hepburn     .    . 


168 
625 
459 
373 
344 
230 

550 
441 
526 
476 
301 
353 
288 
284 
770 
35 
371 
330 

236 
223 


68 

76 
511 

531 
569 
571 
567 
710 
432 
164 

125 
521 
261 
163 
665 
291 
602 
566 
410 

467 
303 
693 
701 
654 
263 
361 
369 
743 
555 
18 


Mixter  v.  Woodcock 56 

Moore  v.  Townshend 238 

Morrison  v.  Chadwick 264 

Morse  v.  Curtis 741 

Morse  v.  Goddard 307 

Neale  v.  Mackenzie 355 

Newman  v.  Anderton 297 

Newman  v.  Chapman 728 

Newton  v.  Speare  Co 298 

Nicholas  v.  Chamberlain      .    .    .  471 

Nickells  v.  Atherstone  .....  379 

Noke  V.  Awder 586 

Nolan  V.  Otney 637 

Ostergard  v.  Norker 717 

Overfield  v.  Christie      84 

Page  I'.  Webster 429 

Palmer  v.  Fletcher 473 

Paradine  v.  Jane 322 

Parker  v.  Foote      118 

Parks  V.  Boston 318 

Paxton  V.  Kennedy 300 

Peoples  Express  Co.  v.  Quinn     .  394 

Perkins  v.  Coleman 786 

Pernam  v.  Weed 161 

Perry  v.  Rockland  Co 225 

Pickering  v.  Pickering 451 

Pinnington  v.  Galland 474 

Pomroy  v.  Stevens 707 

Prescott  V.  Boucher 270 

Providence  Bank  v.  Hall      ...  203 

Pyer  v.  Carter 480 

Reed  v.  Northfield 797 

Richards  v.  Rose 478 

Richardson  v.  Langridge  ....  212 

Right  d.  Flower  v.  Darby    ...  198 

Right  d.  Jeffreys  v.  Bucknell  .    .  765 

Robbins  v.  McCabe 315 

Rodgers  v.  Parker 519 

Rosse's  Case 189 

Royce  v.  Guggenheim 346 

Russell's  Appeal 670 

Saundys  v.  Oliff 47  L  528 

Sayre  v.  Hewes 752 

Schieffelin  v.  Carpenter    ....  383 

School  District  v.  Benson     ...  32 

Schurtz  V.  Colvin 647 

Slater  v.  Rawson 594 

Sleeper  v.  Laconia 178 

Smith  V.  Raleigh 331 

Starr  v.  Child 173 

Starr  v.  Leavitt 425 

Stokes  V.  Berry 32 


TABLE    OF    CASES 


XI 


Suffield  V.  Brown 483 

Sumner  v.  Stevens 62 

Taverner's  Case 323n 

Thre'r  v.  Barton 365 

Thomas  v.  Cook 396 

Thomas  v.  Sylvester 276 

Thompson  v.  Leach 656 

Tracy  v.  Atherton 129 

Union  Lighterage  Co.  v.  London 

Dock  Co 491 

University  Club  v.  Deakin  .    .    .  257 


Van  Rensselaer  v.  Clark  .    . 


738 


Wade  V.  Herndl 350 

Wait  V.  Richardson 437 

Walker's  Case 280 

Ware  v.  Hobbs 326 


Webb  V.  Bird 109 

Webb  V.  Jiggs 279 

Weed  V.  Larkin 596 

Wheaton  v.  Maple  &  Co 114 

Wheelwright  v.  Wheelwright  .    .  632 

White  V.  Patten 780 

White  V.  Wagner 247 

Whitehall  Court  v.  Ettlinger  .    .  312 

Whitley  v.  Gough 372 

Whyddon's  Case 612 

Wickham  v.  Hawker 538 

Willard  v.  Willard 456 

Williamson  v.  Brown 718 

Winnisimmet  Trust  Co.  v.  Libby  286 

Withy  V.  Mumford 561 

Womack  v.  McQuarry 325 

Worthington  v.  (jimson    ....  528 

Xenos  V.  Wickham 652 


TABLE  OF  STATUTES! 

3  Edw.  I,  C.  39  (1275),  Limitation     > "...  25 

31  Hen.  VIII,  C.  1,  §§  2,  3  (1539),  Partition 455 

32  Hen.  VIII,  C.  9  (1540),  Purchase  of  Pretended  Titles 67n 

32  Hen.  VIII,  C.'37,  §  1  (1540),  Distress  by  Executor 270 

21  Jac.  I,  C.  16,  §§  1,  2  (1623),  Limitation 26 

29  Car.  II,  C.  3,  §§  1-3  (1677),  Statute  of  Frauds 148 

4  &  5  Anne,  C.  16,  §§  9,  10  (1705),  Attornment 289 

4  &  5  Anne,  C.  16,  §  27  (1705),  Account  by  Co-Tenant 436 

7  Anne,  C.  20  (1708),  Registration 666 

8  Anne,  C.  14,  §§  4,  6,  7  (1710),  Debt  for  Rent 278 

11  Geo.  II,  C.  19,  §  14  (1738),  Use  and  Occupation 295 

2  &  3  W.  IV,  C.  71,  §§  2,  3  (1832),  Prescription 114n 

3  &  4  W.  IV,  C.  27,  §§  2,  7  (1833),  Limitation 81n 

United  States  (D.  C),  19  Stat.  202  (1876),  Partition 456n 

111.  Annot.  Stats.  (1913),  C.  83,  §§  1-11,  Limitation 26 

111.  Annot.  Stats.  (1913),  §§  2260,  2262,  2263,  Registration 667 

Mass.  Gen.  Laws  (1921),  C.  183,  §§  4,  29,  Registration 667 

Mass.  Gen.  Laws  (1921),  C.  186,  §  12,  Estates  at  Will    . 225 

N.  Y.  Consol.  Laws  (1909),  Real  Property  Law,  §§  291,  292,  315,  320,  Regis- 
tration    667 

N.  Y.  Laws  (1920),  C.  925,  Art.  2,  §§  34-43,  Limitation 30 

Penn.  St.  (1920),  §§  8822,  8842,  8845,  Registration 668 

1  Professor  Williston's  summary  of  the  statutes  of  the  several  states  in  regard 
to  seals  is  to  be  found  on  page  607. 


SELECT    CASES 

AND   OTHER  AUTHORITIES  ON  THE  LAW  OF 

CONVEYANCES 

AND  RELATED  SUBJECTS 

CHAPTER  I 
ACCRETION 

GIFFORD  V.  YARBOROUGH 

5  Bing.  165.     1828. 

Best,  C  J.  ^  My  Lords,  tlie  questions  Avhich  your  Lordships  have 
proposed  for  the  opinion  of  the  Judges  is  as  follows :  "A.  is  seised 
in  his  demesne  as  of  fee  of  the  manor  of  1^.,  and  of  the  demesne 
lands  thereof,  which  said  demesne  lands  were  formerly  bounded  on 
one  side  by  the  sea.  A  certain  piece  of  land,  consisting  of  about 
450  acres,  by  the  slow,  gradual,  and  imperceptible  projection,  allu- 
vion, subsidence,  and  accretion  of  ooze,  soil,  sand,  and  matter  slowly, 
gradually,  and  imperceptibly,  and  by  imperceptible  increase  in  long 
time  cast  up,  deposited,  and  settled  by  and  from  flux  and  reflux  of 
the  tide,  and  waves  of  the  sea  in,  upon,  and  against  the  outside  and 
extremity  of  the  said  demesne  lands  hath  been  formed,  and  hath 
settled,  grown,  and  accrued  upon,  and  against,  and  unto  the  said 
demesne  lands.  Does  such  piece  of  land  so  formed,  settled,  grown, 
and  accrued  as  aforesaid,  belong  to  the  Crown  or  to  A.,  the  owner 
of  the  said  demesne  lands?     There  is  no  local  custom  on  the  subject." 

The  Judges  have  desired  me  to  say  to  your  Lordships  that  land 
gradually  and  imperceptibly  added  to  the  demesne  lands  of  a  manor, 
as  stated  in  the  introduction  to  your  Lordships'  question,  does  not 
belong  to  the  Crown,  but  to  the  owner  of  the  demesne  land. 

All  the  Avriters  on  the  law  of  England  agree  in  this :  that  as  the 
king  is  lord  of  the  sea  that  flows  around  our  coasts,  and  also  owner 
of  all  the  land  to, which  no  individual  has  acquired  a  right  by  occu- 
pation and  improvement,  tlie  soil  that  was  once  covered  by  the  sea 
belongs  to  him. 

But  this  right  of  the  sovereign  might,  in  particular  places,  or, 
under  circumstances,  in  all  places  near  the  sea,  be  transferred  to 

^  In  this  report  in  Bingham,  only  the  opinions  of  the  Judges  and  of  the 
Law  Lords  are  given.  Siih  nom.  The  Kinq  v.  Yarhornnqh  the  case  is  fully 
reported  in  the  King's  Bench,  3  B.  &  C.  91 ;  and  in  the  House  of  Lords,  2 
Bligh  N.  S.  147. 

1 


2  GIFFORI)    ?'.    YARROKOUGH  [CHAP    I 

certain  of  liis  sul)j(utts  by  law.  A  law  giving  sucli  riglits  may  be 
presumed  from  either  a  local  or  general  custom,  such  custom  heing 
reasonable,  aud  proved  to  have  existed  from  time  immemorial.  Such 
as  claim  under  the  former  must  plead  it  and  establish  their  pleas 
by  proof  of  the  existence  of  such  a  custom  from  time  immemorial. 

General  customs  were  in  ancient  times  stated  in  the  pleadings  of 
those  who  claimed  under  them;  as  the  custom  of  merchants,  the  cus- 
toms of  the  realm  with  reference  to  innkeepers  and  carriers,  and 
others  of  the  same  description.  But  it  has  not  been  usual  for  a  long 
time  to  allude  to  such  customs  in  the  pleadings,  because  no  proof  is 
required  of  their  existence;  they  are  considered  as  adopted  into  the 
common  law,  and  as  such  are  recognized  by  the  Judges  w^ithout  any 
evidence.  These  are  called  "  customs  "  because  they  only  apply  to 
particular  descriptions  of  persons,  and  do  not  affect  all  the  subjects 
of  the  realm ;  but  if  they  govern  all  persons  belonging  to  the  classes 
to  which  they  relate,  they  are  to  be  considered  as  public  laws;  as 
an  Act  of  Parliament  applicable  to  all  merchants,  or  to  the  whole 
body  of  the  clergy,  is  to  be  regarded  by  the  Judges  as  a  public  Act. 

If  there  is  a  custom  regulating  the  right  of  the  owners  of  all 
lands  bordering  on  the  sea,  it  is  so  general  a  custom  as  need  not  be 
set  out  in  the  pleadings,  or  proved  by  evidence,  but  will  be  taken 
notice  of  by  the  Judges  as  part  of  the  common  law.  We  think  there 
is  a  custom  by  which  land  from  which  the  sea  is  gradually  and  im- 
perceptibly removed  by  the  alluvion  of  soil,  becomes  the  property 
of  the  person  to  whose  land  it  is  attached,  although  it  has  been  the 
fundus  maris,  and  as  such  the  property  of  the  king.  Such  a  custom 
is  reasonable  as  regards  the  rights  of  the  king,  and  the  subjects 
claiming  under  it ;  beneficial  to  the  public ;  and  its  existence  is 
established  by  satisfactory  legal  evidence. 

There  is  a  great  difference  between  land  formed  by  alluvion,  and 
derelict  land.  Land  formed  by  alluvion  must  become  useful  soil  by 
degrees  too  slow  to  be  perceived :  little  of  what  is  deposited  by  one 
tide  will  be  so  permanent  as  not  to  be  removed  by  the  next.  An  em- 
bankment of  a  sufficient  consistency  and  height  to  keep  out  the  sea 
must  be  formed  imperceptibly.  But  the  sea  frequently  retires  sud- 
denly, and  leaves  a  large  space  of  land  uncovered. 

When  the  authorities  relative  to  these  subjects  are  considered, 
this  difference  will  be  found  to  make  a  material  distinction  in  the 
law  that  applies  to  derelict  lands,  and  to  such  as  are  formed  by 
alluvion.  Unless  trodden  by  cattle,  many  years  must  pass  away 
before  lands  formed  by  alluvion  would  be  hard  enough  or  sufficiently 
wide  to  be  used  beneficially  by  any  one  but  the  owner  of  the  lands 
adjoining.  As  soon  as  alluvion  lands  rise  above  the  water,  the 
cattle  from  the  adjoining  lands  will  give  them  consistency  by  treading 
on  them;  and  prepare  them  for  grass  or  agriculture  by  the  manure 
which  they  will  drop  on  them.  When  they  are  but  a  yard  wide  the 
owner  of  the  adjoining  lands  may  render  them  productive.     Thus 


CHAP.    l]  GIFFORD    V.    YARBOROUGH  3 

lands  which  are  of  no  use  to  the  king  will  be  useful  to  the  owner  of 
the  adjoining  lands,  and  he  will  acquire  a  title  to  them  on  the  same 
principle  that  all  titles  to  lands  have  been  acquired  by  individuals, 
viz.  by  occupation  and  improvement. 

Locke  in  a  passage  in  his  Treatise  on  Government,  in  which  he 
describes  the  grounds  of  the  exclusive  right  of  property,  says:  ''God 
and  man's  reason  commanded  him  to  subdue  the  earth;  that  is,  im- 
prove it  for  the  benefit  of  life,  and  therein  lay  out  something  upon 
it  that  was  his  own,  his  labor.  He  that  in  obedience  to  that  command 
subdued,  tilled,  and  sowed  any  part  of  it,  thereby  annexed  to  it 
something  that  was  his  property  w^hich  another  had  no  title  to, 
nor  could  without  injury  take  from  him." 

This  passage  proves  the  reasonableness  of  the  custom  that  assigns 
lands  gained  by  alluvion  to  the  owner  of  the  lands  adjoining. 

The  reasonableness  is  further  proved  by  this,  that  the  land  so 
gained  is  a  compensation  for  the  expense  of  embankment,  and  for 
losses  which  frequently  happen  from  inundation  to  the  owners  of 
lands  near  the  sea. 

This  custom  is  beneficial  to  the  public.  Much  land  which  would 
remain  for  years,  perhaps  forever,  barren,  is  in  consequence  of  this 
custom' rendered  productive  as  soon  as  it  is  formed.  Although  the 
sea  is  gradually  and  imperceptibly  forced  back,  the  land  formed 
by  alluvion  will  become  of  a  size  proper  for  cultivation  and  use;  but 
in  the  mean  time  the  owner  of  the  adjoining  lands  will  have  acquired 
a  title  to  it  by  improving  it. 

The  original  deposit  constitutes  not  a  tenth  part  of  its  value; 
the  other  nine  tenths  are  created  by  the  labor  of  the  person  Avho 
has  occupied  it;  and,  in  the  words  of  Locke,  the  fruits  of  his  labor 
cannot,  without  injury,  be  taken  from  him. 

The  existence  of  this  custom  is  established  by  legal  evidence. 
In  Bracton,  book  2,  cap.  2,  there  is  this  passage:  "Item,  quod  per 
alluvionem  agro  tuo  flumen  adjecit,  jure  gentium  tibi  acquiritur. 
Est  autem  alluvio  latens  incrementum ;  et  per  alluvionem  adjeci 
dicitur  quod  ita  paulatim  adjicitur  quod  intelligere  non  possis  quo 
momento  temporis  adjiciatur.  Si  autem  non  sit  latens  incrementum, 
contrarium  erit." 

In  a  treatise  which  is  published  as  the  work  of  Lord  Hale,  treat- 
ing of  this  passage,  it  is  said :  "  that  Bracton  follows  in  this  the 
civil  law  writers;  and  yet  even  according  to  this  the  common  law 
doth  regularly  hold  between  parties.  But  it  is  doubtful  in  case  of 
an  arm  of  the  sea."  Hale  de  Jure  Maris,  p.  28.  It  is  true  that 
Bracton  follows  the  civil  law,  for  the  passage  above  quoted  is  to  be 
found  in  the  same  words  in  the  Institute,  lib.  2,  tit.  1,  §  20.  But  Bracton, 
by  inserting  this  passage  in  his  book  on  the  laws  and  customs  of 
England,  presents  it  to  us  as  part  of  those  laws  and  customs.  Lord 
Hale  admits  tliat  it  is  the  law  of  England  in  oases  between  subject 
and      bject;  and  it  wouhl  be  difficult  to  find  a  reason  why  the  same 


4  GIFFORD    V.    YARBOROUGH  [CHAP   I 

question  between  the  Crown  and  a  subject  should  not  be  decided  by 
the  same  rule.  Bracton  wrote  on  the  law  of  England,  and  the  situ- 
ation which  he  filled,  namely,  that  of  Chief  Justice  in  the  reign 
of  Henry  the  Third,  gives  great  authority  to  his  writings.  Lord 
Hale,  in  his  History  of  the  Common  law  (cap.  7),  says,  that  it 
was  much  improved  in  the  time  of  Bracton.  This  improvement 
was  made  by  incorporating  much  of  the  civil  law  with  the  common 
law. 

We  know  that  many  of  the  maxims  of  the  common  law  are  bor- 
rowed from  the  civil  law,  and  are  still  quoted  in  the  language  of 
the  civil  law.  Notwithstanding  the  clamor  raised  by  our  ancestors 
for  the  restoration  of  the  laws  of  Edward  the  Confessor,  I  believe 
that  these  and  all  the  IsTorman  customs  which  followed  would  not 
have  been  sufficient  to  form  a  system  of  law  sufficient  for  the  state 
of  society  in  the  times  of  Henry  the  Third.  Both  courts  of  justice 
and  law  writers  were  obliged  to  adopt  such  of  the  rules  of  the 
Digest  as  were  not  inconsistent  with  our  principles  of  jurispru- 
dence. Wherever  Bracton  got  his  law  from,  Lord  Chief  Baron 
Parker,  in  Fortesque,  408,  says,  "  As  to  the  authority  of  Bracton,  to 
be  sure  many  things  are  now  altered,  but  there  is  no  color  to  say 
it  was  not  law  at  that  time.  There  are  many  things  that  have  never 
been  altered,  and  are  now  law."  The  laws  must  change  with  the 
state  of  things  to  which  they  relate;  but,  according  to  Chief  Baron 
Parker,  the  rules  to  be  found  in  Bracton  are  good  now  in  all  cases 
to  which  those  rules  are  applicable.  But  the  authority  of  Bracton 
has  been  confirmed  by  modern  writers  and  by  all  the  decided  cases 
that  are  to  be  found  in  the  books.  The  same  doctrine  that  Bracton 
lays  down  is  to  be  found  in  2  Rolle's  Abr.  170;  in  Com.  Dig.,  tit. 
Prerogative  (D.  61);  in  Callis  (Broderip's  edition),  p.  51;  and  in 
2  Bl.  Com.  261. 

In  the  Case  of  the  Abbot  of  Peterborough,  Hale  de  Jure  Maris, 
p.  29,  it  was  holden :  "  Quod,  secundum  consuetudinem  patriag,  dom- 
ini  maneriorum  prope  mare  adjacentium,  habebunt  marettum  et 
sabulonem  per  fluxus  et  refluxus  maris  per  temporis  incrementum 
ad  terras  suas  costerae  maris  adjacentes  projecta."  In  the  treatise 
of  Lord  Hale  it  is  said,  "  Here  is  custom  laid,  and  he  relies  not 
barely  on  the  case  -without  it."  But  it  is  a  general,  and  not  a  local 
custom,  applicable  to  all  lands  near  the  sea,  and  not  to  lands  within 
any  particular  district.  The  pleadings  do  not  state  the  lands  to  be 
wathin  any  district,  and  such  a  statement  would  have  been  neces- 
sary if  the  custom  pleaded  were  local.  The  consuetudo  patrice 
means  the  custom  of  all  parts  of  the  country  to  which  it  can  be 
applied;  that  is,  in  the  present  case,  all  such  parts  as  adjoin  the  sea. 

The  case  of  The  King  v.  Oldsworth,  Hale  de  Jure  Maris,  p.  14, 
confirms  that  of  the  Abbot  of  Peterborough  as  to  the  right  of  the 
owner  of  the  adjoining  lands  to  such  lands  as  were  "  secundum  majus 
et  minus  prope  tenementa  sua  projecta"   (p.  29).     That  case  was 


CHAP.    l]  GIFFORD    V.    YARBOROUGH  5 

decided  against  the  owner,  because  lie  also  claimed  derelict  lands 
against  the  Crown. 

Here  it  will  be  observed  that  there  is  a  distinction  made  between 
lands  derelict  and  lands  formed  by  alluvion;  which  distinction,  I 
think,  is  founded  on  the  principle  that  I  have  ventured  to  lay  down, 
namely,  that  alluvion  must  be  gradual  and  imperceptible;  but  the 
dereliction  of  land  by  the  sea  is  frequently  sudden,  leaving  at  once 
large  tracts  of  its  bottom  uncovered,  dry,  and  fit  for  the  ordinary 
purposes  for  which  land  is  used.  But  still  what  Avas  decided  in  this 
case  is  directly  applicable  to  the  question  proposed  to  us.  The 
Judges  are,  therefore,  warranted  by  justice,  by  public  policy,  by 
the  opinions  of  learned  writers,  and  the  authority  of  decided  cases, 
in  giving  to  your  Lordships'  question  the  answer  which  they  have 
directed  me  to  give. 

My  Lords,  the  answer  to  your  Lordships'  question  is  the  unani- 
mous opinion  of  all  the  Judges  who  heard  the  arguments  at  your 
Lordships'  bar.  For  the  reasons  given  in  support  of  that  opinion 
I  alone  am  responsible.  Most  of  my  learned  brothers  were  obliged 
to  leave  town  for  their  respective  circuits  before  I  could  write  what 
I  have  now^  read  to  your  Lordships.  I  should  have  spared  your  Lord- 
ships some  trouble  if  I  had  had  time  to  compress  my  thoughts;  but 
I  am  now  in  the  midst  of  a  very  heavy  Xisi  Prius  sittings,  and  am 
obliged  to  take  from  the  hours  necessary  for  repose  the  time  that 
1  have  employed  in  preparing  this  opinion.  If  it  wants  that  clear- 
ness of  expression  which  is  proper  for  an  0[)iiiion  to  be  delivered 
by  a  Judge  to  this  House,  I  hope  that  your  Lordships  will  consider 
what  I  have  stated  as  a  sufficient  apology  for  this  defect. 

The  Lokd  Chancellok.  My  Lords,  I  beg  to  express  my  thanks 
to  the  learned  Chief  Justice,  and  to  the  Judges,  for  the  attention 
they  have  paid  to  this  subject ;  and  I  have  only  to  add  that  I  entirely 
concur  in  the  conclusion  at  which  they  have  arrived;  and  I  would 
recommend  to  your  Lordships,  as  a  necessary  consequence  of  the 
opinion  which  has  been  expressed,  that  the  judgment  of  the  Court 
of  King's  Bench  upon  the  matter  should  be  affirmed. 

Earl  of  Eldon.  My  Lords.  I  heard  only  part  of  the  argument, 
and  therefore,  I  have  some  difficulty  in  stating  my  opinion  in  this 
case;  but  having  had  my  attention  called  to  subjects  of  the  same 
nature  on  former  occasions,  it  docs  appear  to  me,  I  confess,  after 
reading  the  finding  of  the  jury,  that  the  opinion  of  the  Judges  must 
be  that  which  the  learned  Chief  Justice  has  now  expressed.  I  there- 
fore concur  in  the  opinion  the  Lord  Chief  Justice  has  expressed. 

Judgment  affirmed.^ 

1  See  Barney  v.  Keokuk,  94  U.  S.  324;  N,hro^kn  v.  Iowa,  143  U.  S.  359; 
In  the  Matter  of  City  of  Buffalo,  206  .V.  Y.  319;  In  the  Matter  of  The 
Hull  and  Selby  Ry.  5  M.  &   W.  327. 

In  Steers  v.  City  of  Brooklyn,  101  N.  Y.  51  (1885).  Earl,  J.,  said,  p.  56: 
"  When  soil  is  by  natural  causes  gradually  deposited  in  the  water  opposite 
upland,  and  thu.s  the  water-line  is  carried  further  o>it  into  the  ocean  or  other 


6  GIFFORD    V.    YARBOROUGH  [CHAP   I 

public  water,  it  becomes  attacluMi  to  the  upland,  and  the  title  of  the  upland 
owner  is  still  extended  to  the  water-line,  and  the  accretion  thus  becomes 
his  property.  Natural  justice  requires  that  such  accretion  should  belong 
to  the  upland  owner  so  that  he  will  not  be  shut  off  from  the  water,  and 
thus  converted  into  an  inland  rather  than  a  littoral  owner." 

In  Attorney-General  v.  Chamber.';,  4  De  G.  &  J.  55,  67-69  (1859),  Lord 
Chelmsford  said:  "There  is  nothing,  however,  in  any  of  the  cases,  or  in 
the  few  te.xt  .writers  upon  the  subject,  which  hints  at  the  distinction  now 
sought  by  the  Crown  to  be  established  between  effects  produced  by  natural 
and  by  artificial  causes.  In  order  to  determine  whether  there  is  any  ground 
for  this  distinction,  it  is  essential  to  discover,  if  possible,  the  principle  upon 
which  the  right  to  maritima  incremcnta  depends. 

"  The  law  is  stated  very  succinctly  by  Blackstone,  vol.  2,  p.  262,  in  these 
words:  '  As  to  lands  gained  from  the  sea,  either  by  alluvion,  by  the  washing 
up  of  sand  and  earth,  so  as  in  time  to  make  terra  firma,  or  by  dereliction, 
as  when  the  sea  shrinks  back  below  the  usual  water-mark;  in  these  cases 
the  law  is  held  to  be,  that  if  this  gain  be  by  little  and  little,  by  small  and 
imperceptible  degrees,  it  shall  go  to  the  owner  of  the  land  adjoining.  For 
de  minimis  non  curat  lex;  and  besides  these  owners  being  often  losers  by 
the  breaking  in  of  the  sea,  or  at  charges  to  keep  it  out,  this  possible  gain  is, 
therefore,  reciprocal  consideration  for  such  possible  charge  or  loss;  but 
if  the  alluvion  or  dereliction  be  sudden  and  considerable,  in  this  case  it 
belongs  to  the  King,  for  as  the  King  is  lord  of  the  sea.  and  as  owner  of  the 
soil  while  it  is  covered  with  water,  it  is  but  reasonable  he  should  have  the 
soil  when  the  water  has  left  it  dry.' 

"  I  am  not  quite  satisfied  that  the  principle  de  minimis  non  curat  lex 
is  the  correct  explanation  of  the  rule  on  this  subject;  because,  although 
the  additions  may  be  small  and  insignificant  in  their  progress,  yet,  after  a 
lapse  of  time,  by  little  and  little,  a  very  large  increase  may  have  taken 
place  which  it  would  not  be  beneath  the  law  to  notice,  and  of  which  the 
party  who  has  the  right  to  it  can  clearly  show  that  it  formerly  belonged 
to  him,  he  ought  not  to  be  deprived.  I  am  rather  disposed  to  adopt  the 
reason  assigned  for  the  rule  by  Baron  Alderson.  in  the  case  of  The  Hull 
and  Selby  Railway  Company,  5  M.  &  W.  327.  viz.,  '  That  which  cannot  be 
perceived  in  its  progress  is  taken  to  be  as  if  it  never  had  existed  at  all.' 
And  as  Lord  Abinger  said  in  the  same  case.  '  The  principle'  as  to  gradual 
accretion  '  is  founded  on  the  necessity  which  exists  for  some  such  rule  of 
law  for  the  permanent  protection  and  adjustment  of  property.'  It  must 
always  be  borne  in  mind  that  the  owner  of  lands  does  not  derive  benefit 
alone,  but  may  suffer  loss  from  the  operation  of  this  rule;  for  if  the  sea 
gradually  steals  upon  the  land,  he  loses  so  much  of  his  property,  which  is 
thus  silently  transferred  by  the  law  to  the  proprietor  of  the  sea-shore.  If  this 
be  the  true  ground  of  the  rule,  it  seems  difficult  to  understand  why  similar 
effects,  produced  by  a  party's  lawful  use  of  his  own  land,  should  be  subject 
to  a  different  law,  and  still  more  so  if  these  effects  are  the  result  of  operations 
upon  neighboring  lands  of  another  proprietor.  Whatever  may  be  the  nature 
and  character  of  these  operations,  they  ought  not  to  affect  a  rule  whicJi 
applies  to  a  result  and  not  to  the  manner  of  its  production. 

"  Of  course  an  exception  must  always  be  made  of  cases  where  the  oper- 
ations upon  the  party's  own  land  are  not  only  calculated,  but  can  be  shown 
to  have  been  intended,  to  produce  this  gradual  acquisition  of  the  sea-shore, 
however  difficult  such  proof  of  intention  may  be."  See  Kansas  v.  Meri- 
wether, 182  F.  R.  457;  Saunders  v.  N.  Y.  C.  &  H.  Rd.  Co.,  144  N.  Y.  75. 
It  was  held  in  Lovingston  v.  St.  Clair  County,  64  111.  56,  affirmed  23  Wall. 
(U.  S.)  46,  that  title  to  land  made  gradually  by  alluvion,  passed  to  the 
riparian  owner,  although  the  accretion  was  aided  by  artificial  structures  on 
the  land  of  other  persons.  Brundage  v.  Knox,  279  111.  450;  Adams  v. 
Roberson,  97  Kan.  198;  Tatum  v.  St.  Louis,  125  Mo.  647,  accord. 


CHAP.    l]  FOSTER    V.    WRIGHT  7 

FOSTER  V.  WRIGHT 
L.  R.  4  C.  P.  D.  438.     1878. 

Motion  for  judgment.^ 

Action  to  try  the  right  of  fishing  in  part  of  tlif  River  Liine. 

The  claim  alleged  that  the  plaintiff  was  the  owner  of  the  Camp 
House  Farm,  abutting  on  the  river,  and  of  the  whole  bed  of  the 
river  abutting  on  the  farm;  that  he  also  claimed  in  the  alternative 
a  several  fishery,  and  likewise  in  the  alternative  a  free  fishery  in 
that  part  of  the  river;  that  he  also  claimed  the  bed  of  the  river 
and  the  said  rights  of  fishing  as  lord  of  the  honor  and  manor  of 
Hornby,  which  comprised  the  river  and  the  bed  thereof ;  and  that  the 
defendant  had  committed  divers  trespasses  by  entering  upon  the 
bed  of  the  river  and  fishing  therein,  and  preventing  the  plaintiff 
from  fishing  therein. 

The  defence  alleged  (inter  alia)  that  the  defendant  and  those 
whose  estate  he  had,  were  the  owners  of  the  Snabhousc  estate, 
abutting  on  the  river,  and  that  the  grievances  complained  of  con- 
sisted of  acts  of  fishery  and  other  acts  done  by  the  defendant  in  that 
part  of  the  river  lying  between  its  shore  on  the  Snabliouse  estate 
(opposite  the  Camp  House  Farm),  and  the  middle  of  the  bed  of 
the  river  along  the  same  part  of  the  Snabliouse  estate;  the  defend- 
ant denied  that  the  plaintiff  was  OAvner  or  possessed  of  that  part 
of  the  bed  of  the  river.     Issue. 

At  the  trial  before  Brett,  L.  J.,  at  the  Lancashire  Spring  Assizes, 
1878,  it  appeared  that  no  facts  were  substantially  disputed  except 
as  to  a  question  of  boundary,  viz.,  the  extent  to  which  the  River 
Lune  had  encroached  upon  the  land  of  the  defendant.  Some  en- 
croachment was  admitted,  and  the  parties  arranged  that  the  ({ues- 
tion  of  boundary  should  thereafter  be  settled  between  them,  and 
that  the  plaintiff  should  move  for  judgment  upon  the  facts  proved 
and  admitted,  of  which  those  material  were  as  follow. 

The  river  Lune,  which  is  neither  tidal  nor  navigable,  flows  through 
the  manor  or  honor  of  Hornby,  in  Yorkshire.  From  an  inquisi- 
tion post  mortem  taken  in  the  thirteenth  year  of  Edw.  I.,  it  appears 
that  one  Sir  Geoffrey  de  Seville  held  the  manor  with  the  appur- 
tenances, and  that  he  "  also  held  the  fishery  of  all  the  waters  of 
Hornby."  The  manor  passed  down  into  the  possession  of  George 
Earl  of  Cardigan,  who  in  1711  enfranchised  some  land  in  the  town- 
ship of  Grassingham  within  the  manor.  This  land,  called  Wood's 
Ayre,  did  not  then  abut  on  tlie  river. 

By  the  deed  of  enfranchisement  the  lord  excepted  and  reserved 
from  the  grant  of  the  premises  his  seignioral   rights  and  services, 

1  This  report  was  postponed  pending  an  aitpeal.  The  case  came  before 
the  Court  of  Appeal  dunn}i  the  last  sittinjis,  but  was  there  settled  by  the 
parties. 


8  FOSTER   V.    WRIGHT  [CHAP.   I 

tithes  and  compositions,  and  also  all  manner  of  free  warrens.  .  .  . 
Together  also  with  free  liberty  of  hunting,  hawking,  fishing,  and 
fowling  in  and  upon  the  premises  or  any  part  thereof,  at  seasonable 
and  convenient  times  of  the  year.  In  1780  the  manor  was  for- 
feited on  the  attainder  of  its  lord.  Colonel  Charteris,  but  was  re- 
granted,  with  free  liberty  of  fishing  in  all  the  waters  of  the  manor, 
and  in  1783  came  into  the  hands,  of  Mr.  John  Marsden.  His  heir- 
at-law,  after  establishing  his  right  to  it  in  the  action  of  Tatham  v. 
Wright,  2  Kuss.  &  My.  1 ;  1  A.  &  E.  (Ex.  Ch.)  3,  sold  it,  and  the 
purchaser  afterwards  sold  it  to  the  plaintiff,  who  is  now  the  lord  of 
the  manor. 

The  enfranchised  land,  Wood's  Ayre,  in  the  township  of  Grass- 
ingham,  came  into  possession  of  the  defendant.  It  is  adjacent  to 
the  part  of  the  manor  lands  belonging  to  the  plaintiff  and  in  the 
township  of  Tarleton.  The  boundary  of  the  townships  was  also 
the  boundary  between  the  two  properties. 

Prior  to  1838  the  River  Lune  flowed  wholly  within  these  Tarleton 
lands  of  the  plaintiff.  It  ran  parallel  to  the  defendant's  land, 
but  land  belonging  to  the  plaintiff  was  between  the  river  and  the 
boundary  of  the  defendant's  land. 

From  observations  made  and  noted  on  a  map  by  a  steward  of 
the  defendant's  predecessor  in  title,  it  appeared  that  between  1838 
and  June,  1843,  the  river  had  by  invisible  progress  moved  sideways 
towards  the  defendant's  land  and  was  wearing  away  the  plaintiff's 
land  which  intervened.  By  November,  1843,  it  had  moved  further 
in  the  same  direction,  and  it  continued  to  do  so  until  it  encroached 
to  some  extent  upon  the  land  of  the  defendant,  who,  in  1853,  stopped 
further  encroachment  by  making  an  embankment.  As  a  strip  of 
his  land  now  formed  part  of  the  river  bed,  he  claimed  a  right  to 
go  upon  that  part  to  catch  salmon  which  came  there,  and  in  asser- 
tion of  such  right  he  committed  the  acts  alleged  by  the  plaintiff 
to  be  trespasses.  Cur.  adv.  vult. 

July  3.  LiNDLEY,  J.  The  plaintiff  in  this  case  is  lord  of  the 
manor  of  Hornby,  and  claims  the  exclusive  right  to  fish  in  the 
River  Lune  between  two  points  where  that  river  is  neither  tidal 
nor  navigable;  and  before  the  enfranchisement  hereafter  mentioned, 
the  river  between  those  points  was  locally  situate  within  the  manor 
of  Hornby. 

This  manor  formerly  belonged  to  the  Crown.  In  the  reign  of 
Edward  I.  it  was  granted,  with  the  right  to  fish  in  all  the  waters 
of  the  manor;  and  it  remained  in  private  hands  for  several  centu- 
ries. In  the  year  1711  certain  lands  held  of  the  manor,  but  not 
abutting  on  the  river,  were  enfranchised,  and  these  lands  now  be- 
long to  the  defendant.  After  this  enfranchisement  the  manor  be- 
came forfeited  to  the  Crown;  but  it  was  re-granted,  with  the  free 
liberty  of  fishing  in  all  its  waters,  to  the  predecessors  in  title  of 
the  plaintiff". 


CHAP.    l]  FOSTER    V.    WRIGHT  9 

From  the  earliest  times,  the  lands  adjoining  the  river  on  both 
sides  of  it  belonged  to  the  lord;  and  such  was  the  case  both  when 
the  defendant's  lands  were  enfranchised,  and  when  the  manor  was 
re-granted  by  the  Crown  as  above  mentioned.  In  other  words, 
until  comparatively  modern  times,  the  river  did  not  abut  on  the 
lands  of  the  defendant.  Neither  when  the  defendant's  lands  were 
enfranchised,  nor  when  the  manor  was  re-granted  out,  did  any 
part  of  the  river  either  abut  on  or  flow  through  the  defendant's 
lands.  Under  these  circumstances  I  am  unable  to  see  that  the 
deed  of  enfranchisement  has  any  bearing  on  the  case.  That  deed  re- 
served to  the  lord  whatever  rights  of  fishing  he  had  in  any  water 
flowing  through  or  bounding  the  lands  enfranchised;  but  it  did 
no  more,  and  at  the  date  of  the  enfranchisement  the  Lune  was  not 
one  of  such  waters;  neither  did  the  re-grant  from  the  Crowm  con- 
fer upon  the  grantee  of  the  manor  any  right  to  fish  in  the  river 
as  distinguished  from  any  other  waters  of  the  manor. 

The  counsel  for  the  defendant  suggested  that  the  terms  of  the  new 
grant  did  not  confer  on  the  grantee  any  right  of  fishery,  except  as 
incidental  to  the  ownership  of  the  land  on  the  banks  and  under  the 
river;  but  it  was  conceded  that  as  the  river  was  then  situate,  the 
grantee  from  the  Crown  acquired  such  ownership;  and,  in  the  view 
which  I  take  of  this  case,  it  is  not  material  to  determine  whether 
the  grantee  acquired  his  exclusive  right  to  fish  in  the  river  as  an 
incident  to  the  ownership  of  the  bed  of  the  river,  or  whether  he 
acquired  an  exclusive  right  to  fish  independently  of  such  ownership. 

Since  the  re-grant  of  the  manor,  the  course  of  the  river  between 
the  points  above  referred  to  has  gradually  changed;  its  bed  has 
gradually  approached  nearer  and  nearer  to  the  defendant's  land; 
and  now  some  portion  of  that  land  has  become  part  of  the  river  bed. 
This  part  can  still  be  identified,  and  its  boundary  can  be  ascertained. 
The  question  we  have  to  determine  is,  whether  the  plaintiff's  ex- 
clusive right  of  fishing  extends  over  so  much  of  the  water  as  flows 
over  land  which  can  be  identified  as  formerly  part  of  the  defend- 
ant's property. 

I  am  of  opinion  that  it  does.  The  change  of  the  bed  of  the  river 
has  been  gradual;  and  although  the  river-bed  is  not  now  where  it 
was,  the  shifting  of  tbe  bed  has  not  been  perceptible  from  hour  to 
hour,  from  day  to  day,  from  week  to  week,  nor  in  fact  at  all,  except 
by  comparing  its  position  of  late  years  with  its  position  many  years 
before.  Under  these  circumstances,  I  am  of  opinion  that,  for  all 
purposes  material  to  the  present  case,  the  river  has  never  lost  its 
identity,  nor  its  bed  its  legal  owner. 

Gradual  accretions  of  land  from  water  belong  to  the  owner  of 
the  land  gradually  added  to:  Rr.r  v.  Yarhoronqh.  3  "R.  tS:  C.  91;  .') 
Bing.  163;  and,  conversely,  liuid  gradually  encroiidicd  n|)oii  by 
water  ceases  to  belong  to  the  former  owner:  //;  rr  IIiilJ  and  Selhi/ 
Ry.  Co.,  5  M.  k  W.  327.    The  law  on  tliis  subject  is  based  upon  the 


10  FOSTER   V.    WRIGHT  [CHAP.    I 

impossibility  of  identifying  from  day  to  day  small  additions  to  or 
subtractions  from  land  caused  by  the  constant  action  of  running 
water.  The  history  of  the  law  shows  this  to  be  the  case.  Our  own  law 
may  be  traced  back  through  Blackstone  (vol.  ii.  c.  16,  pp.  261,  262), 
Hale  (De  Jure  Maris,  cc.  1,  6),  Britton  (book  ii.  c.  2),  Fleta  (book 
iii.  c.  2,  §  §  6,  &c.),  and  Bracton  (book  ii.  c.  2),  to  the  Institutes 
of  Justinian  (Inst.  ii.  1,  20),  from  which  Bracton  evidently  took 
his  exposition  of  the  subject.  Indeed,  the  general  doctrine,  and  its 
application  to  non-tidal  and  non-navigable  rivers  in  cases  where  the 
old  boundaries  are  not  known,  was  scarcely  contested  by  the  counsel 
for  the  defendant,  and  is  well  settled.  See  the  authorities  above  cited. 
But  it  was  contended  that  the  doctrine  does  not  apply  to  such  rivers 
where  the  boundaries  are  not  lost;  and  passages  in  Britton  (ubi 
supra),  in  the  Year-Books  (22  Ass.  p.  106,  pi.  93),  and  in  Hale, 
De  Jure  Maris  (book  i.  c.  1,  citing  22  Ass.  pi.  93),  were  referred  to  in 
support  of  this  vicAv :  Foirl  v.  Lacy,  7  H.  &  IST.  151,  was  also  relied 
upon  in  support  of  this  distinction.  Britton  lays  down  as  a  general 
rule  that  gradual  encroachments  of  a  river  inure  to  the  benefit  of 
the  owner  of  the  bed  of  the  river;  but  he  qualifies  this  doctrine  by 
adding,  "  If  certain  boundaries  are  not  found."  The  same  quali- 
fication is  found  in  22  Ass.  pi.  93,  which  case  is  referred  to  in  Hale, 
ubi  supra.  But,  curiously  enough,  this  qualification  is  omitted  by 
Callis  in  his  statement  of  the  same  case :  see  Callis,  p.  51 ;  and  on  its 
being  brought  to  the  attention  of  the  court  in  In  re  Hull  and  Selby 
Ry.  Co.,  the  court  declined  to  recognize  it,  and  treated  it  as  incon- 
sistent with  the  principle  on  which  the  law  of  accretion  rests.  Lord 
Tenterden's  observations  in  Rex  v.  Yarborough,  3  B.  &■  C.  106,  are 
also  in  accordance  with  this  view;  and  although  Lord  Chelmsford 
in  Attorney-General  v.  Chambers,  4  De  G.  &  J.  69-71,  doubted 
whether,  where  the  old  boundaries  could  be  ascertained,  the  doctrine 
of  accretion  could  be  applied,  he  did  not  overrule  the  decision  of 
In  re  Hull  and  Selby  Ry.  Co.,  which  decided  the  point  so  far  as 
encroachments  by  the  sea  are  concerned. 

Upon  such  a  question  as  this  I  am  wholly  unable  to  see  any  differ- 
ence between  tidal  and  non-tidal  or  navigable  or  non-navigable  rivers; 
and  Lord  Hale  himself  says  there  is  no  difference  in  this  respect 
between  the  sea  and  its  arms  and  other  waters :  De  Jure  Maris,  p.  6. 
The  question  does  not  depend  on  any  doctrine  peculiar  to  the  royal 
prerogative,  but  on  the  more  general  reasons  to  which  I  have  alluded 
above.  In  Ford  v.  Lacy  the  ownership  of  the  land  in  dispute  was 
determined  rather  by  the  evidence  of  continuous  acts  of  OAvnership 
since  the  bed  of  the  river  had  changed,  than  by  reference  to  the 
doctrine  of  gradual  accretion;  and  I  do  not  regard  that  case  as 
throwing  any  real  light  on  the  question  I  am  considering. 

Supposing,  therefore,  that  the  plaintiff's  right  to  fish  in  the  Lune 
depends  on  his  ownership  of  the  soil  of  the  river-bed,  I  am  of  opinion 
that  the  plaintiff  hns  that  right;  for  if  he  was  the  owner  of  the  old 


CHAP.    I 


FOSTER    V.    WRIGHT  11 


bed  of  the  river,  he  has  day  l)y  day  and  week  by  week  becouie  the 
owner  of  that  whieli  has  gradually  and  iiiipereeptibly  become  its 
present  bed;  and  the  title  so  gradually  and  im percept ibl}'  acquired 
cannot  be  defeated  by  proof  that  a  portion  of  the  bed  now  capable 
of  identification  was  formerly  land  belonging  to  the  defendant  or 
his  predecessors  in  title. 

But,  supposing  the  plaintiff's  right  of  fishing  not  to  have  been  the 
consequence  of  his  ownership  of  the  soil,  —  supposing  his  to  have 
had  only  a  right  to  fish  in  the  Lune,  —  I  am  of  opinion  that  he 
has  the  same  right  of  fishing  in  the  river  in  its  present  bed  as  he 
had  of  fishing  in  the  river  in  its  old  bed.  I  am  wholly  unable  to 
see  upon  Avhat  principle  a  change  in  the  course  of  a  river,  so  gradual 
that  it  cannot  be  perceived  until  after  the  lapse  of  a  long  interval 
of  time,  can  affect  the  rights  of  those  entitled  to  use  it,  whether  for 
fishing  or  any  other  purpose;  nor  is  there  any  authority  for  holding 
them  to  be  affected  thereby.  The  Mayor  of  Carlisle  v.  Graham, 
Law  Rep.  4  Ex.  361,  is  no  such  authority;  for  in  that  case  the  old 
and  the  new  beds  of  the  river  existed  as  two  distinct  beds;  the  new 
bed  was  not,  as  here,  formed  by  the  old  one  gradually  shifting  its 
place:  then,  the  Avater  gradually  left  the  old  bed,  and  followed  an 
entirely  new  course  always  distinguishable  from  the  old ;  whilst 
here,  there  has  been  and  is  only  one  bed,  and  its  change  of  place 
has  only  become  perceptible  after  the  lapse  of  years.  The  physical 
changes  are  totally  different  in  the  two  cases. 

Whether,  therefore,  the  exclusive  right  of  the  plaintiff  to  fish  in 
the  river  in  question  is  an  incident  to  his  ownership  of  the  soil  or 
is  independent  thereof,  I  am  of  opinion  that  he  is  still  entitled  to 
such  exclusive  right  in  the  river  as  it  now  exists,  and  as  it  will  exist 
if  it  continues  gradually  to  change  its  course;  and  consequently 
I  am  of  opinion  that  judgment  ought  to  be  entered  for  the  plaintiff. 
Lord  Coleridge,  C.  J.  I  have  had  the  advantage  of  reading  the 
judgment  prepared  by  my  Brother  Lindley,  and  I  entirely  concur 
in  the  result  at  which  he  has  just  arrived.  ]^or  should  I  add  any- 
thing, but  that  I  am  not  quite  satisfied  to  base  my  conclusion  so 
much  as  he  does  upon  the  proposition  that  the  grant  of  the  fishery, 
in  such  terms  as  are  used  in  the  two  grants  in  this  case,  carries  with 
it  the  right  of  the  soil,  and  that  the  soil  therefore  of  the  River  Lune 
as  it  varies  gradually  from  time  to  time  passes  irrespective  of  the 
medium  fihim  to  the  plaintiff.  I  do  not  say  that  it  does  not,  hut  I 
am  not  satisfied  that  it  does.  If  the  whole  soil  over  Avhich  the  River 
Lune  flowed  passed  by  the  first  grant,  and,  after  the  death  of  Colonel 
Charteris,  by  the  second  to  the  predecessor  in  title  of  the  plaintiff. 
I  think  the  consequence  as  to  gradual  accretion,  which  my  Brother 
Lindley  draws  from  that  premise,  does  in  legal  reasoning  follow  from 
it.  But  I  confess  I  somewhat  doubt  the  premise.  The  safer  ground 
appears  to  me  to  he  that  the  language  as  to  the  fishery  in  both  the 
earlier  and  the  later  grants  conveys  what  it  expresses,  —  a  right  to 


12  FOSTER   V.    WRIGHT  [CHAP.    I 

take  fish,  and  to  take  it  irrespective  of  the  ownership  of  the  soil  over 
which  the  water  flows  and  the  fish  swim.  The  words  appear  to  me  to 
be  apt  to  create  a  several  fishery,  /.  c,  as  I  understand  the  phrase,  a 
right  to  take  fish  in  alieno  solo,  and  to  exclude  the  owner  of  the  soil 
from  the  right  of  taking  fish  himself;  and  such  a  fishery  I  think 
■would  follow  the  slow  and  gradual  changes  of  a  river,  such  as  the 
changes  of  the  Lune  in  this  case  are  proved  or  admitted  to  have 
been. 

I  agree,  for  the  reasons  given  by  my  Brother  Lindley,  that  the 
case  of  Mayor  of  Carlisle  v.  Graham  is  distinguishable  from  the 
case  before  us;  and  upon  these  grounds,  I  concur  in  thinking  that 
our  judgment  should  be  made  for  the  plaintiff. 

Judgment  for  the  plaintiff} 

1  Compare  Randolph  v.  Hinck,  277  111.  11. 

In  Hindson  v.  Ashby,  L.  R.  [1896]  2  Ch.  1,  plaintiff's  predecessors  ac- 
quired a  piece  of  land  bounded  on  one  side  by  the  river  Thames.  The  land 
ended  in  an  almost  pei-pendicular  bank  five  or  six  feet  high,  to  which  the 
water  reached.  The  water  later  receded,  and  a  deposit  took  place  at  the 
foot  of  the  bank.  The  court  did  not  consider  it  necessary  to  decide  whether 
the  plaintiffs  were  entitled  to  this  deposit  as  an  accretion,  but  it  inti- 
mated that  they  were  not.  Lindley,  L.  J.,  said,  page  13:  "Whether,  apart 
from  the  statute  of  limitations,  the  accretions,  or  the  land  left  by  the  water, 
can  become  the  property  of  the  plaintiffs  or  cease  to  be  the  property  of  the 
defendant,  is  a  question  of  considerable  difficulty,  and  one  which,  in  my 
view  of  the  facts,  it  is  not  now  necessary  to  decide.  Passages  were  cited 
from  Bracton,  Britton,  Fleta,  and  Hale,  De  Jure  Maris,  c.  i.  and  vi.,  and  the 
Year-Book,  22  Ass.  fo.  106,  pi.  93,  to  shew  that  the  doctrine  of  accretion 
does  not  apply  where  boundaries  are  well  defined  and  knowTi.  This  may 
be  if  the  boundary  on  the  waterside  is  a  wall,  or  something  so  clear  and 
visible  that  it  is  easy  to  see  whether  the  accretions,  as  they  become  percep- 
tible, are  on  one  side  of  the  boundary  or  on  the  other.  But  I  am  not  sat- 
isfied that  the  authorities  referred  to  are  applicable  to  cases  of  land  having 
no  boundary  next  flowing  water,  except  the  water  itself.  The  cases  of  Rex  v. 
Lord  Yarborough,  affirmed  by  the  House  of  Lords  in  Gifford  v.  Lord  Yar- 
boroiigh  and  /??  re  Hull  and  Selby  Ry.  Co.,  seem  opposed  to  those  authorities, 
if  applied  to  fluctuating  water  boundaries.  The  judgments  in  Scratton  v. 
Brown  point  in  the  same  direction.  On  the  other  hand,  Attorney-General 
V.  Cha7)ibers  seems  the  other  way.  But  it  is  unnecessary  to  dwell  more  on 
this  question,  and  I  leave  it  for  reconsideration  and  decision  when  it  shall 
arise." 

A.  L.  Smith,  L.  J.  said,  p.  27:  "I  must  add  that  I  very  much  doubt 
if  the  plaintiffs  can  invoke  the  doctrine  of  accretion  as  applying  to  a  case 
where,  as  here,  the  old  fine  of  demarcation  between  the  plaintiffs'  land  and 
the  river  has  always  been  in  existence  and  still  remains  patent  for  all  to  see. 
I  allude  to  the  old  6  ft.  bank. 

"  It  cannot  be  denied  that  authority  is  to  be  found  in  the  books,  for  m- 
stance,  in  Hale  de  Jure  Maris,  Britton,  Fleta,  Bracton,  the  Institutes  of 
Justinian,  and  the  Year-Books.  all  of  which  will  be  found  referred  to  by 
Lindley,  L.  J.,  when  Lindley,  J.,  in  his  judgment  in  Foster  v.  Wnght,  and 
also  in  the  judgment  of  Chelmsford,  L.  C.  in  Attorney-General  v.  Chambers, 
Rex  V.  Lord  Yarborough,  and  in  other  cases,  which  would  lead  to  the  con- 
clusion, that  in  a  case  with  such  metes  and  bounds  ever  existing  as  in  the 
present,  the  doctrine  of  accretion  would  not  apply. 

"  The  case  upon  which  the  counsel  for  the  plaintiffs  relied  to  shew  that  al- 


CHAP.   l]  DEERFIELD    V.    ARMS  13 

DEERFIELD  v.  ARMS 

17  Pick.  (Mass.)  41.     1835. 

Writ  of  entry  to  recover  a  parcel  of  land  containing  about  five 
acres,  recently  formed  by  alluvial  deposits  on  the  margin  and  bed 
of  Deerfield  River.  The  land  lies  and  has  been  formed  in  a  bend 
of  the  river  curving  southerly  and  easterly  from  the  river.  The 
case  was  tried  before  Shaw,  C.  J. 

'The  demandants  claimed  the  land  in  question  as  owners  of  the 
land  on  the  east  bank  of  the  river  at  the  time  of  the  accretion.  The 
tenant  claimed  to  hold  it  as  an  accretion  to  his  own  land  lying 
higher  up  on  the  southerly  and  easterly  side  of  the  bend  on  the  river. 


though  there  might  be  metes  and  bounds,  yet  the  doctrine  of  accretion  did 
apply,  was  that  of  Foster  v.  Wright.  In  that  case,  in  which  the  question 
was  as  to  whether  the  owner  of  a  fishery  in  u  river  could  follow  his  fishery 
when  the  river  gradually  and  imperceptibly  changed  its  course  and  ate  into 
the  soil  of  another,  although  after  many  years  the  encroachment  upon  that 
other's  soil  could  be  identified,  Lindley,  J.,  held  that  it  could  be  followed; 
and,  if  I  may  be  permitted  to  say  so,  I  agree  with  him ;  but  that  learned 
judge  said :  '  The  change  of  the  bed  of  the  river  has  been  gradual ;  and, 
although  the  river  bed  is  not  now  where  it  was,  the  shifting  of  the  bed  has  not 
been  perceptible  from  hour  to  hour,  from  day  to  day,  from  week  to  week, 
nor  in  fact  at  all,  except  by  comparing  its  position  of  late  years  with  its 
position  many  years  before.'  This,  I  would  point  out,  is  not  so  in  the 
present  case;  for,  as  before  stated,  the  old  6  ft.  bank  has  been  ever  standing 
where  it  is.  There  .stands  the  old  line  of  demarcation  of  the  plaintiffs'  land, 
and  there  it  has  stood  clearly  defined  whenever  the  deposit  of  alluvium  by 
reason  of  the  silting  up  of  sand  became  such  as  to  be  in  itself  apparent,  and 
then  and  at  that  very  moment,  when  the  first,  and  indeed  every  subsequent 
accretion,  became  apparent,  so  also  at  the  same  identical  time  it  became 
perceptible  to  the  ordinary  observer  that  the  accretion  so  formed  was  no 
part  of  the  plaintiffs'  land. 

■'  This  certainly  differentiates  this  case  from  Foster  v.  Wright  in  an  essen- 
tial particular;  and,  as  at  present  advised,  I  doubt  extremely  whether  the 
doctrine  of  accretion  applies  at  all  to  the  present  case. 

•'  The  whole  doctrine  of  accretion  is  based  upon  the  theory  that  from 
day  to  day,  week  to  week,  and  month  to  month  a  man  cannot  sec  where  his 
old  line  of  boundary  was  by  reason  of  the  gradual  and  imperceptible  accre- 
tion of  alluvium  to  his  land.  How  can  this  apply  to  a  case  like  the  present, 
when  the  whole  thing  is  at  once  patent?" 

In  Widdecovibe  v.  Chiles,  173  Mo.  195,  lot  A,  owned  by  the  defendant, 
had  originally  been  separated  from  the  Missouri  River  by  lot  B.  The 
river  gradually  wa.shed  away  all  of  lot  B  and  a  part  of  lot  A,  anil  later  grad- 
ually restored  all  of  both  lots  and  added  land  to  what  had  originally  been 
lot  B.  The  original  bounds  of  lot  A  were  known.  Held,  that,  when  the 
intervening  lot  B  had  b{>en  washed  away,  lot  A  became  riparian  land,  and 
the  defendant  was  entitled  to  all  the  land  so  restored  and  added.  Accord, 
Welles  V.  Bailey,  55  Conn.  292;  Peuker  v.  Canter,  62  Kan.  363;  Yearsley  v. 
Gripple,  104  Neb.  88.  Contra,  Ocean  City  Association  v.  Shriver,  64  N.  J. 
L.  550;  Allard  v.  Curran,  41  S.  D.  73.  See  Biu^h  v.  Alexander,  134  Ark.  307; 
Belle fontame  Co.  v.  Niedringhaus,  181  III.  426;  Gradi/  v.  Royar,  181  S.  W. 
(Mo.)    428, 


14  DEERFIELD    V.    ARMS  [CHAP.   I 

One  question,  reserved  for  the  opinion  of  the  whole  court,  was 
whetlier  the  demandants  had  proved  their  title  to  the  laud  ou  the 
east  bank  of  the  river  in  virtue  of  which  title  alone  they  could  claim 
the  accretion.  This  depended  almost  exclusively  on  the  early  records 
of  the  proprietors  of  the  township  of  Deerfield,  and  the  town  and 
the  parish  surveys,  grants,  and  other  documents. 

The  tenant  contended,  that  supposing  the  demandants'  title  to  the 
land  on  the  east  bank  to  be  established,  still  it  would  not  entitle  them 
to  any  part  of  the  alluvial  formation,  because  he  maintained  that  he 
and  those  under  whom  he  claimed  had  been  in  possession  of  some 
part  of  the  alluvial  formation  for  near  sixty  years;  and  that  as  it 
commenced  making  on  the  southwesterly  side,  it  had  never  reached 
the  east  bank  of  the  river,  and  therefore  it  could  not  be  said  to  be 
an  accretion  to  it.  It  was  testified  that  between  the  eastern  bank 
of  the  river,  and  the  alluvial  land  in  controversy,  there  is  a  low 
place  into  which  a  small  brook  falls;  and  that  often  there  is  water 
in  it,  but  that  sometimes  it  is  dry. 

If  the  court  should  be  of  opinion  that  the  demandants  were  entitled 
to  recover  any  part  of  the  land  in  controversy,  the  amount  and 
proportion  to  which  they  were  entitled  was  to  be  determined  by 
an  assessor  or  commissioners,  conformably  to  such  rules  as  the  court 
should  establish. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  There  are  sev- 
eral points  in  this  cause  to  which  it  seems  proper  to  allude  in  the 
outset,  and  upon  which  we  entertain  no  doubt. 

In  the  first  place  it  seems  very  clearly  settled  that,  upon  all  rivers 
not  navigable  (and  all  rivers  are  to  be  deemed  not  navigable  above 
where  the  sea  ebbs  and  floAvs),  the  owner  of  land  adjoining  the  river  is 
prima  facie  owner  of  the  soil  to  the  central  line,  or  thread  of  the 
river,  subject  to  an  easement  for  the  public  to  pass  along  and  over 
it  with  boats,  rafts,  and  river  craft.  This  presumption  will  prevail 
in  all  cases,  in  favor  of  the  riparian  proprietor,  unless  controlled 
by  some  express  words  of  description  which  exclude  the  bed  of  the 
river,  and  bound  the  grantee  on  the  bank  or  margin  of  the  river. 
In  all  cases,  therefore,  where  the  river  itself  is  used  as  a  boundary, 
the  law  will  expound  the  grant  as  extending  ad  filum  medium  aquce. 

We  also  consider  it  as  a  well-settled  principle  of  law,  resulting  in 
part  from  the  former,  that  where  land  is  formed  by  alluvion,  in 
a  river  not  navigable,  by  slow  and  imperceptible  accretion,  it  is 
the  property  of  the  owner  of  the  adjoining  land,  who  for  convenience, 
and  by  a  single  term,  may  be  called  the  riparian  proprietor.  And 
in  applying  this  principle,  it  is  quite  immaterial  whether  this  allu- 
vion forms  at  or  against  the  shore,  so  as  to  cause  an  extension  of 
the  shore  or  bank  of  the  river,  or  whether  it  forms  in  the  bed  of 
the  river  and  becomes  an  island.  And  where  an  island  is  so  formed 
in  the  bed  of  a  river  as  to  divide  the  channel  and  form  partly  on 
each  side  of  the  thread  of  the  river,  if  the  land  on  the  opposite  sides 


CHAP.    I J  DEERFIELD    V.    ARMS  15 

of  tliL'  river  belong  to  different  [iroprietors,  the  island  will  l»e  divided, 
according  to  the  original  thread  of  the  river,  between  the  i-ival 
proprietors. 

This  view  of  the  subject  disposes  of  one  of  thi'  (questions  of  fact,  in 
relation  to  which  some  evidence  was  given;  namely,  whether  the 
alluvial  formation  in  controversy  was  separated  by  water  from 
the  eastern  bank  of  the  river,  claimed  by  the  demandants  as  ripa- 
rian proprietors,  or  whether  the  newly  formed  land,  at  that  point, 
extends  quite  to  the  eastern  bank.  We  think  this  fact  entirely 
immaterial  to  the  rights  in  controversy  between  these  parties. 

But  by  far  the  most  difficult  question  in  this  cause,  is,  whether  the 
demandants  have  established  a  title  to  the  land  lying  on  the  east- 
erly bank  of  the  river  at  the  place  in  question,  so  as  to  constitute 
them  riparian  proprietors,  in  which  character  alone  they  can  main- 
tain the  claim  which  they  assert  in  this  action.  It  is  true  that  the 
title  to  the  land  on  the  easterly  side  of  the  river  is  not  claimed  by  the 
defendant;  still,  the  demandants  must  recover  by  the  strength  of 
their  own  title  and  not  by  the  weakness  of  the  defendant's,  and  as  the 
demandants  aver  that  they  are  seised  of  this  land,  and  this  aver- 
ment is  material  to  their  title,  and  is  traversed  and  put  in  issue 
by  the  defendant,  it  is  a  fact  to  be  proved.  As,  however,  no  counter 
title  is  set  up  by  the  defeudanV,  it  is  obvious  that  a  prima  fario  title 
will  be  sufficient. 

[The  Chief  Justice  here  went  into  an  examination  of  the  evidence 
of  the  demandants'  title  to  the  land  on  the  eastern  side  of  the  river 
at  the  place  in  question,  drawing  the  conclusion  that  they  were 
seised  of  the  same.     He  then  proceeded  :] 

Considering  that  the  town  have  esta])lished  their  title  as  riparian 
proprietors  to  a  certain  portion  of  the  alluvial  formation  in  question, 
it  only  remains  to  inquire  how  it  shall  be  divided.  This  is  a  curious, 
and  in  many  aspects  in  which  it  may  be  presented  would  be  a  very 
difficult,  subject,  as  well  as  the  analogous  one  of  the  division  of  flats, 
or  land  bounding  on  salt  water,  over  which  the  tide  ebbs  and  flows, 
among  coterminous  riparian  proprietors,  were  it  necessary  to  pre- 
scribe a  general  rule  applicable  to  all  supposable  cases.  But  1  do 
not  think  it  necessary  to  discuss  this  subject  at  large,  because  the 
circumstances  of  the  present  case  do  not  require  it. 

As  neither  of  the  riparian  proprietors  can  establish  any  claim  supe- 
rior to  the  other,  it  is  manifest  that  the  newly  acquired  land  must 
be  divided  equally  between  the  parties,  in  pro])ortiou  to  the  land 
which  they  respectively  hold  as  riparian  proprietors,  and  in  virtue 
of  which  the  law  attributes  to  them  this  acquisition. 

The  facts  of  the  present  case  show,  and  it  appears  by  the  plan, 
which  is  made  part  of  the  case,  that  the  alluvion  is  formed  in  a 
bend  of  the  river,  extending  along  in  front  of  \\\o  lands  of  several 
different  owners. 

The  object  is,  to  estaldish   a   rule  of  division    among   tlies<'   pro- 


16  DEERFIELD    V.    ARMS  [CHAP.    I 

prietora,  which  will  do  justice  to  each,  where  no  positive  rule  is 
prescribed,  and  where  we  have  no  direct  judicial  decisions  to  guide 
us.  The  case  most  analogous  to  the  present,  which  has  occurred  in 
this  Commonwealth,  is  that  of  the  division  of  flats  ground,  among 
coterminous  proprietors,  conformably  to  the  general  principle  laid 
down  in  the  Colony  ordinance,  giving  to  the  proprietors  of  lands 
bounding  on  salt  water,  where  the  tide  ebbs  and  flows,  propriety 
to  low-water  mark,  with  some  qualifications.  Rust  v.  Boston  Mill 
Corp.,  6  Pick.  158;  Emerson  v.  Taylor,  9  Greenl.  44,  In  both  cases 
we  think  two  objects  are  to  be  kept  in  view  in  making  such  an 
equitable  distribution;  one  is,  that  the  parties  shall  have  an  equal 
share  in  proiDortion  to  their  lands,  of  the  area  of  the  newly  formed 
land,  regarding  it  as  land  useful  for  the  purposes  of  cultivation  or 
otherwise,  in  which  the  value  will  be  in  proportion  to  the  quantity; 
the  other  is,  to  secure  to  each  an  access  to  the  w^ater,  and  an  equal 
share  of  the  river-line  in  proportion  to  his  share  of  the  original 
line  of  the  water,  regarding  such  water-line  in  many  situations  as 
principally  useful  for  forming  landing-places,  docks,  quays,  and  other 
accommodations  with  a  view  to  the  benefits  of  navigation,  and  as 
such  constituting  an  important  ingredient  in  the  value  of  the  land. 
Without  attempting  to  establish  a  rule  of  general  application,  we 
think  that  the  one  which  shall  most  nearly,  in  general,  accomplish 
these  two  conditions,  will  come  nearest  to  doing  justice. 

A  rule  which  appears  to  us  to  be  applicable  to  the  present  case 
and  meets  the  required  conditions,  is  found  in  a  work  of  the  civil 
law,  cited  by  the  learned  counsel  who  opened  the  case  for  the  de- 
mandants, entitled  "  A  Collection  of  Xew  Decisions,"  by  Denisart, 
published  in  France  in  1783.  It  is  in  the  form  of  a  dictionary, 
and  this  subject  is  discussed  under  the  title,  Atterissement. 

The  rule  suggested  in  this  work  is  founded  upon  the  obvious  con- 
sideration already  alluded  to,  that  in  many  cases  lands  which 
border  upon  navigable  rivers  derive  a  great  part  of  their  actual 
value  from  that  circumstance,  aiid  from  the  benefit  of  the  public 
easement  thereby  annexed  to  such  lands;  and  that  being  wholly 
deprived  of  the  benefit  of  that  situation  would  operate  as  a  great 
hardship  and  do  real  injustice  to  a  riparian  proprietor,  although 
he  should  obtain  his  full  proportion  of  the  land  measured  by  the 
surface.  This  injustice  will  be  avoided  by  the  proposed  rule,  in  con- 
formity with  which  each  proprietor  will  take  a  larger  or  smaller 
proportion  of  the  alluvial  formation,  and  of  the  newly  formed  river 
or  shore  line,  according  to  the  extent  of  his  original  line  on  the 
shore  of  the  river. 

The  rule  is,  1.  To  measure  the  w'hole  extent  of  the  ancient  bank 
or  line  of  the  river,  and  compute  how  many  rods,  yards,  or  feet 
each  riparian  proprietor  owned  on  the  river  line.  2.  The  next  step 
is,  supposing  the  former  line,  for  instance,  to  amount  to  200  rods, 
to  divide  the  newly  formed  bank  or  river  line  into  200  equal  parts, 


CHAP.    I J  DEERFIELD    V.    ARMS  17 

jiud  appropriate  to  each  pi-o|)ri<^t("tr  :is  many  i)ortions  of  this  new 
river  line  as  he  ownod  rods  on  the  old.  i'licn,  to  coniplcto  the  divi- 
sion, lines  arc  to  1k^  drawn  from  the  points  at  which  the  proprietors 
respectively  bounded  on  the  old,  to  the  points  thus  determined  as 
the  points  of  division  on  the  newly  formed  shore.  The  new  lines, 
thus  formed,  it  is  obvious,  will  be  either  parallel,  or  divergent,  or 
convergent,  according  as  the  new  shore  line  of  the  river  equals  or 
exceeds  or  falls  short  of  the  old. 

This  mode  of  distribution  secures  to  each  riparian  proprietor  the 
benefit  of  continuing  to  hold  to  the  river  shore,  whatever  changes 
may  take  place  in  the  condition  of  the  river  by  accretion;  and  the 
rule  is  obviously  founded  in  that  principle  of  equit}^  upon  which  the 
distribution  ought  to  be  made.  It  may  require  modification,  perhaps, 
under  particular  circumstances.  For  instance,  in  applying  the  rule 
to  the  ancient  margin  of  the  river,  to  ascertain  the  extent  of  each 
proprietor's  title  on  that  margin,  the  general  line  ought  to  be 
taken,  and  not  the  actual  length  of  the  line  on  that  margin  if  it 
happens  to  be  elongated  by  deep  indentations  or  sharp  projections. 
In  such  case  it  should  be  reduced,  by  an  equitable  and  judicious 
estimate,  to  the  general  available  line  of  the  land  upon  the  river. 
We  are  not  aware  that  in  the  present  case  any  such  modification 
will  be  necessary,  and  therefore  the  general  rule  may  be  applied, 
and  will  do  justice  between  the  parties.^ 

1  Malone  v.  Mohbs,  102  Ark.  542;  Reeves  v.  Muore,  105  Ark.  598;  Peoria 
V.  Central  Bank,  224  111.  43  (but  see  Kehr  v.  Snyder,  114  111.  313);  Berry  v. 
Hoogendoorn,  133  Iowa,  437;  DeLassus  v.  Faherty,  164  Mo.  361;  Miller  v. 
Lloyd,  275  Mo.  35;  Batchelder  v.  Keniston,  51  N.  H.  496;  Hathaway  v. 
Milwaukee,   132  Wis.  249,  accord. 

See  Jones  v.  Johufiton,  18  How.  (U.  S.)  150;  Johnftton  v.  Jones,  1  Black 
(U.  S.)  209;  Nirdlinger  v.  Steren.%  262  F.  R.  591;  Dclord  v.  New  Orleans, 
11  La.  Ann.  699;  Smith  v.  Leavenworth,  101  ]\ri.-^s.  238;  Benne  v.  Miller, 
149  Mo.  228;   Gorton  v.  Rice,  153  Mo.  676. 

The  rules  on  the  cognate  subject  of  dividing  flats  are  given  in  a  note 
by  the  reporter  to  the  case  of  Commonwealth  v.  Roxbury,  9  Gray  (Mass.)  451, 
521-523. 

See  Trustees  of  Hopkins  Academy  v.  Dickinson,  9  Cush.  (Mass.)  544, 
where  it  is  said,  p.  552 :  "  In  asc-ertaining  the  thread  of  the  river,  it  will  be 
proper  to  take  the  middle  line  between  the  shores  upon  each  side,  without 
regard  to  the  channel,  or  lowest  and  deepest  part  of  the  stream." 

An  accretion  to  islands,  see  Wilson  v.  Watson,  144  Ky.  352;  Archer  v. 
Southern  Ry.  Co.,  114  Miss.  403.  On  division  between  island  and  mainland 
proprietors,  see  Menominee  Co.  v.  Scidl,  149  Wis.  316;  Ann.  Cas.  1914  A 
483;  Ann.  Cas,  1918  E  1000.  I.>^lands  attached  to  shore  by  accretion,  6  L.  R. 
A.  N.  s.  194.  Islands  ncwlv  formed,  35  L.  R.  A.  N.  s.  229;  Bracton  Lib. 
II.  c.  2  Fol.  9  A;  De  Jure  Maiis,  17. 


18 


MILLER    V.    HEPBURN 


[chap.  I 


MILLEK  /;.  HEPBURN 
8  Bush.  (Ky.)  326.     1871 

Judge  Hardin  delivered  tlie  opinion  of  the  court. 

The  appellees,  claiming  title  as  the  children  and  representatives 
of  "William  Preston,  deceased,  to  some  lots  of  ground  in  the  city 
of  Louisville,  situated  near  the  foot  of  Jackson  Street,  and  between 
Fulton  Street  and  the  Ohio  River,  instituted  their  actions  against 
the  appellants  in  June,  1867,  for  the  recovery  of  parts  of  the  lots 
then  in  the  defendants'  possession,  they  owning  and  occupying  an 


A/£S. 


/TfVER  LINE      G- 


H. 


m4. 


1830. 


J. 


A  \    K. 


RIVER    LINE       1867. 


OHIO    RIVER. 


adjacent  lot,  which,  with  those  of  the  plaintiffs  and  the  interference 
in  controversy,  is  shown  by  the  diagram  here  inserted;  the  plaintiils 
owning  in  the  largest  lot,  'No.  4,  the  lots  in  controversy,  which 
when  laid  off  in  1830  abutted  on  the  Ihen  line  of  the  river  at  the 
letter  G,  but  noAv,  as  contended  by  the  appellees,  are  in  consequence 
of  an  alluvion  formed  in  front  of  them,  and  the  consequent  recession 
of  the  river,  prolonged  to  the  present  water-line  at  the  letter  H; 
while  the  defendants,  who  own  the  lot  No.  5,  claim  that  as  the 
accretion  was  formed  and  the  river  receded,  their  west  line,  which 


CHAP.    I.J  MILLER    V.    HEPBURN  19 

terminated  originally  at  the  letter  G,  was  graduall}^  extended  till 
it  reached  the  present  water-line  at  the  letter  K,  crossing  each  of 
the  plaintiffs'  lots  extended,  as  claimed  by  them,  so  that  the  ground 
in  dispute  is  that  indicated  by  the  letters  G,  H,  I,  J. 

The  defences  involved  both  a  denial  of  the  alleged  title  of  the 
plaintiffs  and  an  assertion  of  right  in  the  defendants  for  substan- 
tially the  following  reasons:  F'n'st,  that  the  law  continued  the  natu- 
ral course  of  their  side-line  from  the  point  G  towards  K  as  the  river 
receded;  second,  that  as  the  accretion  was  formed,  said  line  was 
extended  and  adopted  by  the  concurrence  and  acquiescence  of  the 
owners  and  tenants  in  possession  of  the  adjacent  lots;  third,  that 
the  plaintiffs  were  barred  by  continued  adverse  possession  of  the 
ground  in   controversy. 

The  court  was  of  the  opinion  that  plaintiffs,  as  riparian  ])fopri('tors 
of  their  lots  originally  fronting  on  the  river,  were  entitled  to  the 
land  added  thereto  by  accretion,  to  be  ascertained  by  extending  tne 
original  river  frontage  of  the  respective  lots,  as  nearly  as  practicable, 
at  right  angles  with  the  course  of  the  river  to  the  thread  of  the 
stream,  and  rendered  judgments  in  accordance  with  that  conclusion; 
and  these  appeals  are  prosecuted  for  the  reversal  of  those  judgments. 

The  first  question  to  be  decided  is,  \vhether  the  rule  adopted  by 
the  court  for  determining  the  extent  of  the  plaintiffs'  recovery,  if 
they  were  entitled  to  recover  at  all,  was  correct.  In  the  very  able 
and  ingenious  argument  of  the  counsel  for  the  appellants  in  this 
court,  the  general  principle  is  not  questioned  that  in  ascertaining 
the  rights  of  a  riparian  proprietor  no  importance  should  be  given  to 
the  quantity  or  figure  of  his  entire  tract,  nor  the  course  of  its  side- 
lines; and  we  presume  it  unnecessary  to  resort  to  authority  or  illus- 
tration to  prove  that  the  appellants  could  not  acquire  title  to  the 
ground  in  controversy  merely  because  of  the  oblique  direction  of 
the  western  side-line  of  their  lot  with  reference  to  the  general 
course  of  the  river.  But  it  is  insisted  for  the  appellants,  in  sub- 
stance, that  the  court  erred  in  adopting  an  arbitrary  method  of 
determining  the  relative  rights  of  the  parties  by  extending  the  side- 
lines of  the  plaintiffs'  lots  from  their  respective  original  ievmini 
on  the  shore  as  nearly  as  i)Ossible  at  right  angles  with  the  course 
of  the  river  to  the  centre  of  the  stream,  instead  of  so  drawing  the 
lines  as  to  give  to  each  riparian  proprietor  such  a  proportion  of 
the  alluvial  soil  as  the  total  extent  of  his  front-line  bears  to  the 
total  quantity  of  the  alluvial  soil  to  be  divided,  without  regard  to 
the  general  course  of  the  river  or  the  centre  of  the  stream;  and  we 
are  referred  to  the  cases  of  Deerfleld  v.  Arms,  17  Pickering,  41; 
Jones  et  al.  v.  Johnston.  18  Howard,  150;  Johnston  v.  Jones  et  al., 
1  Black,  209,  as  authority  for  this  method  of  equitable  apportion- 
ment. 

In  the  first  cited  case  it  does  not  distinctly  ap])onr  whether  Deer- 
field  River,  on  which  the  alluvion  was  formed,  was  tci-linically  and 


20  MILLER    V.   HEPBURN  [CHAP.   I 

according  to  the  common  law  a  navigable  stream;  all  rivers  Lcing 
thereby  deemed  not  navigable  "  above  where  the  sea  ebbs  and  flows." 
But  it  is  apparent  from  the  reasoning  of  the  court  in  that  case,  as 
well  as  the  other  two  cases  cited,  that  the  rules  intended  to  be  ap- 
plied were  those  usually  adopted  for  determining  the  relative  rights 
of  riparian  owners  of  the  banks  of  navigable  rivers  and  lakes,  and 
the  division  of  flats  on  the  sea-shore,  or  on  coves  in  which  the  tide 
ebbs  and  flows.  And  as  is  properly  said  in  the  able  and  lucid  opin- 
ion delivered  by  the  special  judge  who  decided  these  cases  in  the 
court  below :  "  The  rules  thus  laid  down  may  be  eminently  proper 
in  the  division  of  the  accretion  upon  the  shores  of  navigable  streams 
where  the  tide  ebbs  and  flows,  because  the  proprietor  adjoining  the 
edge  of  such  river  only  owns  to  the  water's  edge,  and  low  water 
is  the  end  of  the  line;  and  hence,  as  the  shore  changes,  the  respec- 
tive lines  on  such  shore  must  change ;  but  in  a  river  not  navigable  — 
that  is,  where  the  tide  does  not  ebb  and  flow  —  the  proprietor  does 
not  stop  at  low  water,  but  by  permission  and  sufferance  of  the  State 
he  goes  to  the  middle  of  the  stream,  and  must  have  his  shore-front 
to  the  middle ;  and  it  is  a  matter  of  little  consequence  whether  islands 
are  formed,  or  whether  there  is  an  accretion  on  the  shore,  or  whether 
the  water  remains  as  it  w^as  when  he  received  his  grant;  he  is  en- 
titled to  his  front  to  the  centre  of  the  stream." 

With  reference  to  the  distinction  here  taken,  we  are  aware  that 
jurists  have  differed  in  opinion  w-hether  in  this  country,  as  in  Eng- 
land, the  existence  of  tide  water  should  be  the  test  of  navigability, 
so  far  as  riparian  rights  may  be  involved,  the  Ohio  and  many  other 
fresh-water  streams  being  practically  navigable,  subservient  to  com- 
merce, and  subject  to  maritime  jurisdiction,  though  above  and  un- 
affected by  the  tide.  But  whateA^er  contrariety  of  authority  there 
may  be  on  that  question,  it  may  be  regarded  as  settled  in  this  State 
in  favor  of  the  common  law  rule  since  the  decision  of  the  case  of 
Berry  v.  Snyder,  £c.,  3  Bush,  266. 

With  a  proper  application  of  that  rule  in  this  case  the  solution  of 
the  question  under  consideration  cannot  be  difficult.  It  does  not 
appear  that  the  general  course  and  central  thread  of  the  river  oppo- 
site to  the  ground  in  dispute  cannot  be  ascertained  under  the  judg- 
ment in  these  cases  with  sufficient  certainty  for  practicable  purposes ; 
and  if  it  be  true,  as  in  effect  adjudged  by  the  lower  court,  that  the 
several  owners  of  the  river-bank  at  which  the  accretion  was  formed 
were  entitled  to  an  extension  of  the  original  river-fronts  of  their 
lots  across  the  accretion,  upon  lines  drawn  as  nearly  as  practicable 
at  right  angles  with  the  centre  of  the  river,  the  only  difficulty  would 
seem  to  be  in  determining  the  course  on  which  these  lines  should 
be  drawn  with  reference  to  each  other  and  the  thread  of  the  river 
at  the  terminus  of  each  of  the  lines,  which  would  be  necessarily 
parallel  or  convergent  or  divergent,  as  the  relative  lengths  and 
courses  of  the  original  shore-line  and  central  line  of  the  river  might 
differ. 


CHAP.    I.J  MILLER    V.    HEPBURX  21 

The  principle  of  equitable  apportionment  contended  for  by  the 
counsel  for  the  appellants  is  manifestly  right  when  applied  in  the 
division  between  conterminous  i)roprietors  of  an  alluvion  on  a 
lake  or  sea-shore,  or  even  on  the  bank  of  a  river  below  tide-water, 
where  the  titles  of  the  riparian  owners  are  limited  by  the  water's 
edge,  and  the  law  indicates  no  particular  course  for  the  extension 
or  enlargement  of  their  boundaries  over  the  alluvial  soil;  but  it 
is  clearly  inconsistent  wdth  the  right  of  each  owner  of  the  bank 
of  a  river  above  tide-water  to  carry  his  title  to  the  middle  of  the 
stream. 

The  conclusion  of  the  Court  of  Common  Pleas  on  this  point  is 
not,  in  our  opinion,  inconsistent  with  the  adjudged  cases  cited  as 
authority  against  it  w^hen  properly  applied,  and  it  is  moreover  sub- 
stantially sustained  by  several  decisions,  among  which  may  be  cited 
the  cases  of  Knight  v.  Wilder,  2  Cush.  199;  Larrlmer  v.  Benson, 
8  Mich.   18;   and  Rice  v.  Ruddeman,  10  Mich.   125. 

But  it  is  further  contended  for  the  appellants  that  Avhatever  may 
have  been  the  legal  right  of  themselves  and  those  under  whom  they 
claimed  to  prolong  their  western  line  over  the  accretion  as  it  w'as 
formed,  it  \ras  so  prolonged  according  to  its  original  course,  and 
recognized  and  established  as  the  true  line  by  the  adjacent  owners 
and  their  tenants.  It  appears  that  Jesse  Vansicles,  under  whom  the 
appellants  claim  as  remote  vendees,  took  possession  of  the  large  lot, 
No.  5,  in  1849  or  1850,  and  that  he  did  at  one  time  undertake  to 
extend  the  line  as  it  is  now  claimed  by  the  appellants;  but  his  right 
to  do  so  was  disputed  by  the  tenants  of  the  appellees,  and  the  attempt 
was  not  persisted  in,  although  then  and  afterward  a  path  or  roadway 
extended  to  the  river  near  where  the  line  would  be  as  claimed  by 
the  appellants. 

We  are  not  satisfied  from  the  evidence  that  the  supposed  contin- 
uation of  the  line  was  at  any  time  sanctioned  or  agreed  to  by  the 
appellees;  but  if  it  was,  the  agreement,  whether  express  or  implied, 
existing  in  parol  only,  did  not  divest  the  plaintiffs  of  their  title. 
Robinson,  &c.  v.  Conn.  2  Bibb,  124;  Smith  v.  Dudley,  1  Littell,  66. 

As  to  the  question  of  limitation,  it  is  sufficient  to  say  that  it  does 
not  appear  that  the  appellants  were  in  the  adverse  possession  of  the 
ground  in  controversy  at  an  earlier  period  than  1860  or  1861,  and  the 
action  w^as  not  therefore  barred. 

Wherefore,  no  error  being  perceived  in  the  judgments,  the  same 
are  affirmed.^ 

1  See  Calkins  v.  Hart,  219  N.  Y.  145. 

Compare  Smith  v.  JoJinson,  71  F.  R.  f)47;  Stark  v.  Meriwether,  98  Kan. 
10,  99  Kan.  650;  NeiHon  v.  Eddy,  23  Vt.  319;  Hubbard  v.  Manwell,  60  Vt. 
235. 


22  COOK  V.  m'^clure  [chap.  I 

COOK  V.  McCLUKE 

58  N.  Y.  437.     1874. 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  Fourth  Judicial  Department,  affirming  a  judgment  in 
favor  of  defendant  entered  upon  a  verdict.  Reported  below,  2 
K  Y.  S.  C.  (T.  &  C.)  434. 

This  was  an  action  of  ejectment,  brought  to  recover  a  small 
strip  of  land  in  Springville,  Cattaraugus  County,  in  the  possession 
of  the  defendant,  and  upon  which  he  had  erected  and  maintained 
for  some  years  a  building,  used  for  a  storehouse. 

The  claim  of  the  plaintiff  was  that  the  strip  of  land  was  formerly 
covered  with  the  water  of  a  n^illpond,  caused  by  the  backflow  of 
the  water  of  Spring  Creek,  by  reason  of  the  erection  and  mainte- 
nance of  a  milldam  across  said  creek,  erected  and  maintained  for 
many  years  for  the  supply  of  a  mill  owned  and  operated  by  the 
plaintiff  and  those  under  whom  she  claimed.  The  plaintiff  and 
defendant  claimed  under  the  same  title  and  the  same  grantors.  The 
premises  owned  by  plaintiff  were  first  deeded;  the  deed  included 
the  land  covered  by  the  pond.  The  boundary  lines  between  the 
lands  deeded  and  those  subsequently  conveyed  and  owned  by  defend- 
ant are  given  in  the  deed  as  follows :  "  Thence  southerly  along  said 
line  (i.  e.,  of  land  owned  by  the  late  Jarvis  Bloomfield)  to  the  corner- 
store  standing  in  the  southwest  corner  of  said  Bloomfield's  land; 
thence  south  fifty-five  degrees  east  to  a  stake  near  the  high-water 
mark  of  the  pond  of  the  grist-mill;  thence  northeasterly  along  the 
high-water  mark  of  said  pond  to  the  upper  end  of  said  pond,  or  to  the 
north  line  of  said  lot  number  nine."  Evidence  was  given,  on  the  part 
of  plaintiif,  tending  to  show  that  the  place  where  the  defendant's 
store  stood  was  covered  at  times,  before  he  took  title,  by  the  waters 
of  said  pond,  and  that  the  ground  was  made  in  whole  or  in  part 
by  accretions  of  land  and  the  subsidence  of  the  Avaters  of  the  pond, 
or  the  changes  of  the  same,  subsequent  to  the  conveyance  under 
which  plaintiff  claimed. 

The  court,  among  other  things,  charged  the  jury :  "  That  where 
a  man's  boundary  line  is  a  stream  of  water,  if  natural  causes  added 
to  the  soil  by  accretion,  the  soil  thus  added  belonged  to  the  owner 
of  the  bank  or  shore."  Also,  "  that  if  such  natural  accretion  took 
place  when  the  boundary  line  was  a  pond,  such  accretion  belonged 
to  the  adjacent  owner  where  the  accretion  was  deposited."  To  which 
the  counsel  for  the  plaintiff  duly  excepted. 

Grover,  J.  The  only  questions  in  this  case  were  upon  the  two 
exceptions  taken  by  the  appellant  to  the  charge  to  the  jury.  The 
judge  charged,  that  where  a  man's  line  is  a  stream  of  water,  if 
natural  causes  added  to  the  soil  by  accretion,  the  soil  thus  added 
belonged  to  the  owner  of  the  bank  or  shore.     To  this  the  appellant 


CHAP.    I J  COOK    V.    M^CLURE  23 

excepted.  He  further  charged,  that  if  such  natural  accretion  took 
place  where  the  boundary  line  was  a  pond,  such  accretion  belonged 
to  the  adjacent  owner  when  the  accretion  was  deposited. 

The  first  proposition  charged  it  is  scarcely  necessary  to  discuss, 
as  the  question  involved  in  the  case  is  more  distinctly  presented 
by  the  exceptions  taken  to  the  second.  That  question  is,  whether, 
under  the  facts  of  this  case,  the  boundary  in  the  deed  under  which  the 
plaintiff,  by  several  mesne  conveyances,  makes  title,  establishes  a 
fixed  and  permanent  line,  or  whether  such  line  would  follow  a 
change  in  the  water  of  the  pond  if  produced  by  natural  causes. 
The  proof  shows  that  at  the  time  of  the  conveyance  the  grantor 
owned  all  the  lands  claimed  by  both  parties.  He  conveyed  the 
land  claimed  by  the  plaintiff,  describing  the  disputed  boundary  as 
follows:  Commencing  (for  this  purpose)  at  a  store  lately  owned  by 
Jarvis  Bloomfield,  standing  in  the  southwest  corner  of  his  lot, 
thence  south  fifty-five  degrees  east  one  chain  and  seventy-nine  links 
to  a  stake  near  the  high-water  mark  of  the  pond  of  the  grist  mill, 
thence  northeasterly  along  the  high-water  mark  of  said  pond  to 
the  upper  end  of  said  pond,  or  to  the  nortli  line  of  said  lot  number 
nine.  The  question  is  as  to  this  last  boundary.  The  pond  was  an 
artificial  one,  raised  by  a  dam  across  a  running  stream,  for  the 
purpose  of  creating  power  to  propel  the  machinery  of  mills  then 
owned  by  the  grantor  and  included  in  the  deed.  The  proposition 
where  the  boundary  is  upon  a  stream  is  correct,  with  the  qualifi- 
cation that  such  accretion  of  alluvium,  to  inure  to  the  riparian 
owner,  must  be  imperceptible ;  that  the  amount  added  in  any  moment 
could  not  be  perceived.  Hahey  v.  McCormick,  18  iN".  Y.  147;  3 
Kent,  428;  Angell  on  Watercourses,  §  53  and  note.  I  do  not  think 
that  there  is  any  distinction  in  this  respect  between  a  boundary 
upon  a  running  stream  of  water  and  a  pond.  Failing  to  make 
this  qualification  may  not  have  prejudiced  the  appellant.  If  his 
counsel  thought  it  would,  he  should  have  called  attention  to  it, 
and  requested  a  modification  of  the  charge  in  this  respect. 

But  this  does  not  reach  the  real  question  in  the  case;  that  is, 
whether  the  boundary  was  not  made  by  the  deed  fixed  and  perma- 
nent, so  that  if  the  water  from  natural  causes  encroached,  upon 
the  land  beyond  high-water  mark,  as  it  was  at  the  time  of  the  giving 
the  deed  covering  a  portion  of  such  land,  the  land  so  covered  would 
not  have  remained  the  property  of  the  grantor;  and  whether,  on 
the  other  hand,  if  the  water  of  the  pond,  from  such  causes,  had 
receded  so  as  to  leave  dry  land  below  the  then  high-water  mark, 
such  land  would  not  be  tlir  ])roperty  of  the  grantee,  or  whether  the 
line  would  continue  to  be  the  high-water  mark  of  the  pond  as  changed 
by  such  causes.  It  maj  be  remarked  that  tlie  reason  given  in  the 
cases  where  tlie  boundary  is  upon  the  l);niks  of  the  stream  that  it 
should  go  to  low-water  mark,  and  in  some  castas  for  giving  the  allu- 
vium insensibly  formed  to  tlie  rii)arian  owner, — that  the  party  should 


24  COOK    V.    M'CLURE  [CHAP.    I 

not  be  cut  off  from,  but  continue  to  have  access  to  the  water  for  . 
use, — has  no  application  to  the  case.  The  line  was  fixed  at  the 
high-water  mark  of  the  pond.  Hence  the  grantor  reserved  to  himself 
no  interest  whatever  in  the  water  or  the  land  covered  by  it.  He 
could  not,  without  trespassing,  reach  the  water  at  all,  only  when 
at  high-water  mark,  and  then  he  had  no  right  to  or  in  it  for  any  pur- 
pose. The  land  between  high  and  low  water  mark  clearly  passed 
to  the  grantee  under  the  deed.  Again,  the  grantor  was  under  no 
obligation  to  keep  up  the  dam  or  pond.  He  could  cut  down  the 
dam. and  use  the  land  for  any  purpose  he  chose.  Should  the  pond 
from  any  cause  fill  up  along  the  disputed  boundary,  he  had  the 
right  of  clearing  it  out  up  to  the  line.  Had  the  bank  been  partially 
washed  away  by  the  action  of  the  water,  the  grantor  had  the  right 
of  filling  in  to  the  line.  But  these  rights  would  not  exist,  should 
the  line  be  held  to  continue  at  high-water  mark,  as  that  might  from 
time  to  time  be  changed  by  the  action  of  the  water  from  natural 
causes.  This  right,  claimed  by  the  defendant,  of  acquiring  title 
by  accretion,  if  it  existed,  could  be  terminated  by  the  plaintiff  by 
a  removal  of  the  dam.  I  think  the  language  of  the  deed  indicates 
a  clear  intention  to  establish  a  fixed  and  permanent  line,  and  not 
one  changeable  by  the  changes  in  the  high-water  mark  of  the  water 
in  the  pond.  It  follows  that  the  charge,  when  applied  to  the  facts  in 
this  case,  was  erroneous.  The  boundary  between  the  parties  was 
the  high-water  mark  at  the  time  of  the  deed  *to  Bradley,  and  the 
jury  should  have  been  so  charged.  Whether  alluvium  had  been 
formed  had  nothing  to  do  with  the  case.  The  evidence  was  such 
that  the  jury  may  have  found  that  the  land  in  dispute  was  allu- 
vium, formed  by  the  natural  action  of  the  water  below  this  line; 
and  if  so,  under  the  charge  they  would  have  found  it  was  the 
defendant's;  while  if  the  fact  was  so,  the  title  was  in  the  plaintiff. 

The  judgment  appealed  from  must  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  event. 

All  concur,  except  Church,  C.  J.,  not  voting. 

Judgment  reversed.^ 

1  See   Eddy   v.   St.   Mars,   53   Vt.   462. 

Boundaries  on  navigable  lakes  or  ponds.  Brundage  v.  Knox,  279  111.  450; 
State  v.  Gilmanton,  9  N.  H.  461;   Austin  v.  Rutland  Rd.  Co.,  45  Vt.  215. 

Boundaries  on  non-navigable  lakes  or  ponds.  Hardin  v.  Jordan,  140  U.  S. 
371;  Lamprey  v.  Minnesota,  52  Minn.  181;  Tucker  v.  Mortenson,  126  Minn. 
214;  Brignall  v.  Hannah,  34  N.  D.  174;  Conneaut  Lake  Ice  Co.  v.  Quiglcy, 
225  Pa.  605. 

In  Boorman  v.  Su7inachs,  42  Wis.  233,  it  was  said  that  an  abutter  on  a 
natural  pond,  the  soil  of  which  is  in  the  state  or  the  United  States,  acquires 
title  to  land  left  by  imperceptible  reliction.  Fuller  v.  Shedd,  161  111.  462; 
French  Live  Stock  Co.  v.  Sprii^gcr,  35  Or.  312%  accord. 

In  Hodges  v.  Williams,  95  k.  C.  331,  it  wa,s  held  that  if  the  bed  of  a 
natural  pond  had  been  granted  by  the  state,  an  abutter  on  the  pond  would 
not  acquire  title  to  land  left  by  gradual  reliction;  and  it  was  said  that  the 
same  would  be  true  in  the  case  of  imnavigable  streams. 


CHAPTER  II 
LAPSE  OF  TIME 

SECTIOI^  I 

STATUTES    OF    LIMITATION 

A.  Statutes 
ENGLAND 

3  Edw.  I,  c.  39  (1275).  —  And  forasmuch  as  it  is  long  time 
passed  since  the  writs  undernamed  were  limited;  it  is  provided, 
That  in  conveying  a  descent  in  a  writ  of  right,  none  shall  presume 
to  declare  of  the  seisin  of  his  ancestor  further,  or  heyond  the  time 
of  King  Richard,  uncle  to  King  Henry,  father  to  the  King  that 
now  is;  and  that  a  writ  of  Novel  disseisin,  of  Partition,  which  is 
called  Nuper  ohiit,  have  their  limitation  since  the  first  voyage  of 
King  Henry,  father  to  the  King  that  now  is,  into  Gascoin.  And 
that  writs  of  Mortdancestor,  of  Cosinage,  of  Aiel,  of  Entry,  and  of 
Nativis,  have  their  limitation  from  the  coronation  clause  of  the  same 
King  Henry,  and  not  before.  Nevertheless  all  writs  purchased  now 
by  themselves,  or  to  be  purchased  between  this  and  the  feast  of  St. 
John,  for  one  year  complete,  shall  be  pleaded  from  as  long  time,  as 
heretofore  may  have  been  used  to  be  pleaded. 

21  Jac.  I,  c.  16,  §§  1,  2  (1623).  — For  quieting  of  men's  estates, 
and  avoiding  of  suits,  be  it  enacted  by  the  King's  most  excellent 
majesty,  the  lords  spiritual  and  temporal,  and  commons,  in  this 
present  Parliament  assembled,  That  all  writs  of  formedon  in  de- 
scender, formedon  in  remainder,  and  formedon  in  reverter,  at  any 
time  hereafter  to  be  sued  or  bought,  of  or  for  any  manors,  lands, 
tenements  or  hereditaments,  whereunto  any  person  or  persons  now 
hath  or  have  any  title,  or  cause  to  have  or  pursue  any  such  writ, 
shall  be  sued  and  taken  within  twenty  years  next  after  the  end 
of  this  present  session  of  Parliament :  and  after  the  said  twenty  years 
expired,  no  such  person  or  persons,  or  any  of  their  heirs,  shall  have 
or  maintain  any  such  writ,  of  or  for  any  of  the  said  manors,  lands, 
tenements  or  hereditaments;  (2)  and  that  all  writs  of  formedon  in 
descender,  formedon  in  remainder  and  formedon  in  reverter,  of  any 
manors,  lands,  tenements,  or  other  hereditaments  Avhatsoever,  at 
any  time  hereafter  to  be  sued  or  brought  by  occasion  or  means  of 
any  title  or  cause  hereafter  happening,  shall  be  sued  and  taken 
within  twenty  years  next  after  the  title  and  cause  of  action  first 

25 


26  STATUTES    OF    LIMITATION  [CHAP.    II 

descended  or  fallen,  and  at  no  time  after  the  said  twenty  years  ;^ 
(3)  and  that  no  person  or  persons  that  now  hath  any  right  or 
title  of  entry  into  any  manors,  lands,  tenements  or  hereditaments 
now  held  from  him  or  them,  shall  thereinto  enter,  but  within  twenty 
years  next  after  the  end  of  this  present  session  of  Parliament,  or 
within  twenty  years  next  after  any  other  title  of  entry  accrued;  (4) 
and  that  no  person  or  persons  shall  at  any  time  hereafter  make 
any  entry  into  any  lands,  tenements  or  hereditaments,  but  within 
twenty  years  next  after  his  or  their  right  or  title  which  shall  here- 
after first  descend  or  accrue  to  the  same;  and  in  default  thereof, 
such  persons  so  not  entering,  and  their  heirs,  shall  be  utterly  ex- 
cluded and  disabled  from  such  entry  after  to  be  made;  any  former 
law   or   Statute   to   the   contrary   notwithstanding. 

II.  Provided  nevertheless,  That  if  any  person  or  persons,  that  is 
or  shall  be  entitled  to  such  writ  or  writs,  or  that  hath  or  shall  have 
such  right  or  title  of  entry,  be  or  shall  be  at  the  time  of  the  said 
right  or  title  first  descended,  accrued,  come  or  fallen,  within  the 
age  of  one  and  twenty  years,  feme  covert,  non  compos  m.entis,  im- 
prisoned or  beyond  the  seas,  that  then  such  person  or  persons,  and 
his  or  their  heir  and  heirs,  shall  or  may,  notwithstanding  the  said 
twenty  years  be  expired,  bring  his  action,  or  make  his  entry,  as  he 
might  have  done  before  this  Act;  (2)  so  as  such  person  and  persons, 
or  his  or  their  heir  and  heirs,  shall  within  ten  years  next  after  his 
and  their  full  age,  discoverture,  coming  of  sound  mind,  enlargement 
out  of  prison,  or  coming  into  this  realm,  or  death,  take  benefit  of 
and  sue  forth  the  same,  and  at  no  time  after  the  said  ten  years.^ 

ILLINOIS 

Annot.  Stats.  (1913)  Chap.  83 

§  1.  No  person  shall  commence  an  action  for  the  recovery  of 
lands,  nor  make  an  entry  thereon,  unless  within  twenty  years  after 
the  right  to  bring  such  action  or  make  such  entry  first  accrued, 
or  within  twenty  years  after  he  or  those  from,  by,  or  under  whom 
he  claims,  have  been  seized  or  possessed  of  the  premises,  except  as 
hereinafter  provided. 

§  2.  If  such  right  or  title  first  accrued  to  an  ancestor  or  prede- 
cessor of  the  person  who  brings  the  action  or  makes  the  entry, 
or  to  any  person  from,  by,  or  under  whom  he  claims,  the  twenty 
years  shall  be  computed  from  the  time  when  the  right  or  title  so 
first  accrued. 

§  ?i.^     The  right  to  make  an  entrv  or  bring  an  action  to  recover 

1  See  Dow  v.  Warnn.  6  Mass.  328;    Tohon  v.  Kaye,  3  Bred.  &  B.  217. 

2  See  Stat.  3  &  4  Will.  4  c.  27;  Stat.  37  &  38  Vict.  c.  57;  34  Law  Quar. 
Rev.  253;  Ticlihornc  v.  Weir.  67  L.  T.  x.  s.  735;  O'Cniinor  v.  Foley,  [1905] 
1  I.  R.  1. 

^  Compare  Hawaii.  Rev.  Laws  (1915),  §  26.53;  Michigan,  Comp.  Laws 
(1915),  §  12313;  Massachusetts,  Gen.  Laws  (1920),  c.  260,  §  23. 


SECT.    l]  STATUTES    OF    LIMITATION  27 

land  sliull  be  deoined  to  luive  first  accrued  at   flu-  times  respectively 
hereinafter  mentioned,   that   is  to  say: 

First — When  any  person  is  disseized,  his  riglit  of  i-iitry  or  of 
action  shall  be  deemed  to  have  accrued  at  the  time  of  such  disseizin. 

Second — When  he  claims  as  heir  or  devisee  of  one  who  died  seized, 
his  right  shall  be  deemed  to  have  accrued  at  the  time  of  such  death, 
unless  there  is  a  tenancy  by  the  curtesy  or  other  estate  intervening 
after  the  death  of  such  ancestor  or  devisor;  in  which  case  his  right 
shall  be  deemed  to  accrue  when  such  intermediate  estate  ex- 
pires, or  when  it  would  have  expired  by  its  own  limitations. 

Third — When  there  is  such  an  intermediate  estate,  and  in  all 
other  cases  when  the  party  claims  by  force  of  any  remainder  or 
reversion,  his  right,  so  far  as  it  is  affected  by  the  limitation  herein 
prescribed,  shall  be  deemed  to  accrue  wdien  the  intermediate  or 
precedent  estate  would  have  expired  by  its  own  limitation,  notwith- 
standing any  forfeiture  thereof  for  which  he  might  have  entered  at 
an  earlier  time. 

Fourth — The  preceding  clause  shall  not  prevent  a  person  from 
entering  when  entitled  to  do  so  by  reason  of  any  forfeiture  or 
breach  of  condition;  but  if  he  claims  under  such  a  title,  his  right  shall 
be  deemed  to  have  accrued  wlicn  the  forfeiture  was  incurred  or 
the  condition  was  broken. 

Fifth — In  all  cases  not  otherwise  specially  provided  for,  the  right 
shall  be  deemed  to  have  accrued  when  the  claimant,  or  the  person 
under  whom  he  claims,  first  became  entitled  to  the  possession  of 
the  premises  under  the  title  upon  which  the  entry  or  the  action 
is  founded. 

§4.^  Actions  brought  for  the  recovery  of  any  land,  tenements  or 
hereditaments  of  which  any  person  may  be  possessed  by  actual  resi- 
dence thereon  for  seven  successive  years,  having  a  connected  title  in 
law  or  equity,  deductible  of  record,  from  this  State  or  the  United 
States,  or  from  any  public  officer  or  other  person  authorized  by  the 
laws  of  this  State  to  sell  such  land  for  the  non-payment  of  taxes,  or 
from  any  sheriff,  marshal  or  other  person  authorized  to  sell  such  land 
on  execution,  or  under  any  order,  judgment  or  decree  of  any  court  ot 
record,  shall  be  brought  within  seven  years  next  after  possession 
being  taken,  as  aforesaid ;  but  when  the  possessor  shall  acquire  such 
title  after  taking  such  possession,  the  limitation  shall  begin  to  run 
from  the   time   of   acquiring   title. 

§  5.  The  heirs,  devisees  and  assigns  of  the  person  having  such 
title  and  possession,  sliall  luive  the  same  benefit  of  the  ])receding 
section  as  the  person  from  wliom  the  possession  is  derived. 

§  6.-     Every  person  in  the  actual  possession  (^f  hind  or  tenements, 

1  See  Arkansas,  Dig.  Stats.  (1921).  §6947;  K.Mitiuky.  St;fts.  (19ir)). 
§2513;   Washington.  Code.  (1919),  §  T.WCi. 

-  See  Arizona.  Rev.  Stats.  (1913),  §  697;  South  Dakota  Comp.  Laws 
(1915),  Code  Civ.  Proc.  §.54;  Washington.  Code  (1919).  §7.538. 


28  STATUTES    OF    LIMITATION  [CHAP.    II 

under  claim  and  color  of  title,  made  in  good  faith,  and  who  shall, 
for  stn-en  successive  years,  continue  in  such  possession,  and  shall 
also,  during  said  time,  pay  all  taxes  legally  assessed  on  such  lands 
or  tenem(nits,  shall  be  held  and  adjudged  to  be  the  legal  owner  of 
said  lands  or  tenements,  to  the  extent  and  according  to  the  purport 
of  his  or  her  paper  title.  All  persons  holding  under  such  possession, 
by  purchase,  devise  or  descent,  before  said  seven  years  shall  have 
expired,  and  who  shall  continue  such  possession,  and  continue  to 
pay  the  taxes  as  aforesaid,  so  as  to  complete  the  possession  and  pay- 
ment of  taxes  for  the  term  aforesaid,  shall  be  entitled  to  the  benefit 
of  this  section. 

§  7.^  Whenever  a  person  having  color  of  title,  made  in  good  faith 
to  vacant  and  unoccupied  land,  shall  pay  all  taxes  legally  assessed 
thereon  for  seven  successive  years,  he  or  she  shall  be  deemed  and 
adjudged  to  be  the  legal  owner  of  saiJ  vacant  and  unoccupied  land, 
to  the  extent  and  according  to  the  purport  of  his  or  her  paper  title. 
All  persons  holding  under  such  tax-payer,  by  purchase,  devise  or 
descent,  before  said  seven  years  shall  have  expired,  and  who  shall 
continue  to  pay  the  taxes,  as  aforesaid,  so  as  to  complete  the  pay- 
ment of  taxes  for  the  term  aforesaid,  shall  be  entitled  to  the  benefit 
of  this  section:  Provided,  however,  if  any  person,  having  a  better 
paper  title  to  said  vacant  and  unoccupied  land,  shall,  during  the 
said  term  of  seven  years,  pay  the  taxes  assessed  on  said  lands  for 
any  one  or  more  years  of  the  said  term  of  seven  years,  then  and  in  that 
case  such  tax-payer,  his  heirs  and  assigns,  shall  not  be  entitled 
to  the  benefit  of  this  section. 

§  8.^  The  two  preceding  sections  shall  not  extend  to  lands  or 
tenements  owned  by  the  United  States  or  of  this  State,  nor  to  school 
and  seminary  lands,  nor  to  lands  held  for  the  use  of  religious  societies, 
nor  to  lands  held  for  any  public  purpose.  Nor  shall  they  extend  to 
lands  or  tenements  when  there  shall  be  an  adverse  title  to  such 
lands  or  tenements,  and  the  holder  of  such  adverse  title  is  under  the 
age  of  twenty-one  years,  insane,  imprisoned,  feme  covert,  out  of 
the  limits  of  the  United  States,  and  in  the  employment  of  the  United 
States  or  of  this  State:  Provided,  such  person  shall  commence  an 
action  to  recover  such  lands  or  tenements  so  possessed,  as  aforesaid, 
within  three  years  after  the  several  disabilities  herein  enumerated 
shall  cease  to  exist,  and  shall  prosecute  such  action  to  judgment,  or 
in  case  of  vacant  and  unoccupied  land,  shall  within  the  time  last 
aforesaid,  pay  to  the  person  or  persons  who  have  paid  the  same, 
all  the  taxes,  with  interest  thereon,  at  the  rate  of  twelve  per  cent 
per  annum,  that  have  been  paid  on  said  vacant  and  unimproved  land. 

§  9.  If,  at  any  time  when  such  right  of  entry  or  of  action  upon  or 

1  See  Arkansas,  Dig.  (1921).  §6943;  South  Dakota.  Comp.  Laws  (1915), 
Code  Civ.  Proc,  §55;  Washington,  Code  (1919).  §7539. 

2  See  South  Dakota,  Comp.  Laws  (1913),  Code  Civ.  Proc,  §  56;  Wash- 
mgton.  Code  (1919),  §7540. 


SECT,    ij  STATUTES    OF    LIMITATION  29 

for  land  first  accrues,  the  person  entitled  to  such  entry  or  action 
is  within  the  age  of  twenty-one  years,  or  if  a  female,  of  the  age  of 
eighteen  years,  or  insane,  imprisoned  or  absent  from  the  United 
States  in  the  service  of  the  United  States  or  of  this  State,  such 
person  or  any  one  claiming  from,  by  or  under  him  or  her,  may  make 
the  entry  or  bring  the  action  at  any  time  within  two  years  after  such 
disability  is  removed,  notwithstanding  the  time  before  limited  in 
that   behalf   has   expired. 

§  10.  If  the  person  first  entitled  to  make  entry  or  bring  such  action, 
dies  during  the  continuance  of  any  of  the  disabilities  mentioned  in 
the  preceding  section,  and  no  determination  or  judgment  has  been 
had  of  or  upon  the  title,  right  or  action  which  accrued  to  him,  the 
entry  may  be  made  or  the  action  brought  by  his  heirs  or  any  person 
claiming  from,  by  or  under  him  at  any  time  wdthin  two  years  after 
his  death,  notwithstanding  the  time  before  limited  in  that  behalf 
has  expired. 

§  11.  No  person  shall  commence  an  action  or  make  a  sale  to  fore- 
close any  mortgage  or  deed  of  trust  in  the  nature  of  a  mortgage, 
unless  within  ten  years  after  the  right  of  action  or  right  to  make 
such   sale   accrues.^ 

1  See  lUinois,  Laws  (1915),  p.  495. 

The  statutory  provisions  in  Colorado  are  similar  to  those  in  Illinois. 
Colorado,  Annot.  Stats.  (1915),  §§4650-4659. 

In  the  following  jurisdictions,  if  the  adverse  possessor  holds  under  color  of 
title,  a  shorter  period  is  available  for  him.  In  some  of  them,  good  faith, 
or  payment  of  taxes,  or  both,  are  also  necessary  to  securing  the  benefit  of 
the  shorter  term.  Alaska,  Annot.  Code  (1907),  Code  Civ.  Proc,  §1042; 
Arizona,  Rev.  Stats.  (1913),  §§695,  697;  Colorado,  Annot.  Stats.  (1915), 
§4655;  Georgia,  Annot  Code  (1914),  §4169;  Illinois.  Annot.  Stats.  (1913), 
c.  83,  §  6  ante,  p.  27,  and  states  in  note  2  p.  27;  North  Carolina,  Stats. 
(1919),  §428;  Texas,  Civ.  Stats.  (1913),  §§5672,  5674.  Compare  North 
Dakota,  Comp.  Laws  (1913),  §  5471;  Uhanrr  v.  Uhanrc,  174  N.  W.  (N.  D.) 
880. 

Simple  statutory  provisions  providing  for  the  barring  of  entry  or  action 
or  both  for  the  recovery  of  real  estate  after  a  certain  period,  and  for  dis- 
abilities are  to  be  found  in  the  following  jurisdictions:  Arkansas.  Dig.  Stats. 
(1921).  §6942  (seven  years);  Connecticut,  Revision  (1918),  §6152  (fifteen); 
Delaware,  Rev.  Code  (1915),  §§4662-4665  (twenty);  District  of  Columbia, 
Annot.  Code  (1919),  §1265  (fifteen);  Hawaii,  Rev.  Laws  (1915),  §§2651- 
2658  (ten);  Indiana,  Annot.  Stats.  (1914),  §§  295,  298  (twenty);  Iowa,  Code 
(1913),  §§3447,  3453  (ten);  Kansas,  Gen.  Stats.  (1915).  §§6905.  6906  (fif- 
teen); Kentucky,  Stats.  (1915),  §§2505-2508  (fifteen);  Maine,  Rev.  Stats. 
(1916),  c.  110  (twenty);  Massachu.-^ett<,  Gen.  Laws  (1920),  c.  260  (twenty); 
Michigan,  Comp.  Laws  (1915);  §§12311-12317  (fifteen);  Minnesota.  Gen. 
Stats.  (1913),  §§7696-7710  (fifteen);  Missouri,  Rev.  Stats.  (1919),  §§1305- 
1314  (ten);  Nebraska,  Rev.  Stats.  (1913).  §§  7564.  7575  (ten);  New  Hamp- 
shire, Pub.  Stats.  (1901).  c.  217  (twenty);  New  Mexico.  Stats.  (1915).  §  3365 
(ten);  Ohio.  Annot.  Gen.  Code  (1912),  §  11219  (twenty-one);  Oklahoma,  Rev. 
Laws  (1910),  §§46.5.5-46.56  (fifteen);  Oregon.  Laws  (1920).  §§4.  17  (ten); 
Pennsylvania,  Purdon's  Digest  (1905),  pp.  2268-2275  (twenty-one);  Vermont, 
Pub.  Stat<  (1906),  c.  78  (fifteen):  Virginia.  Annot.  Code  (1004),  §§5805- 
5808    (fifteen);    West    Virginia,    Annot.    Code    (1913),    §§4414-4417    (ten); 


30  STATUTES    Ol'    LIMITATION  [CHAP.    II 


NEW  YORK 
1920,  Chap.  925,  Art.  2. 

§  34.  An  action  ^  to  recover  real  property  or  the  possession  thereof 
cannot  be  maintained  by  a  party  other  than  the  people,^  unless  the 
plaintiff,  his  ancestor,  predecessor  or  grantor,  was  seized  or  pos- 
sessed of  the  premises  in  question  within  twenty  years  before  the 
commencement  of  the  action. 

A  defense  or  counterclaim  founded  upon  the  title  to  real  property, 
or  to  rents  or  services  out  of  the  same,  is  not  effectual  unless  the 
person  making  it,  or  under  whose  title  it  is  made,  or  his  ancestor, 
predecessor  or  grantor,  was  seized  or  possessed  of  the  premises  in 
question  within  twenty  years  before  the  committing  of  the  act  with 
respect  to  which  it  is  made. 

§  35.  In  an  action  to  recover  real  property  or  the  possession  there- 
of, the  person  who  established  a  legal  title  to  the  premises  is  presumed 
to  have  been  possessed  thereof  within  the  time  required  by  law; 
and  the  occupation  of  the  premises  by  another  jierson  is  deemed  to 
have  been  under  and  in  subordination  to  the  legal  title  unless 
the  premises  have  been  held  and  possessed  adversely  to  the  legal 
title  for  twenty  years  before  the  commencement  of  the  action. 

§  36.  An  entry  upon  real  property  is  not  sufficient  or  valid  as  a 
claim  unless  an  action  is  commenced  thereupon  within  one  year  after 
the  making  thereof  and  within  twenty  years  after  the  time  when 
the  right  to  make  it  descended  or  accrued. 

§  37.  Where  the  oeeiipant  or  those  under  whom  he  claims  entered 
into  the  possession  of  the  premises  under  claim  of  title,  exclusive 
of  any  other  right,  founding  the  claim  upon  a  written  instrument, 
as  being  a  conveyance  of  the  premises  in  question,  or  upon  the  decree 
or  judgment  of  a  competent  court,  and  there  has  been  a  continued 
occupation  and  possession  of  the  premises  included  in  the  instrument, 
decree  or  judgment,  or  of  some  part  thereof,  for  twenty  years,  under 


Wyoming,  Comp.  Stats.  (1910),  §§4295,  4296  (ten).  And  see,  Alabama,  Code 
(1907),  §4834  (ten);  Alaska,  Code  (1907)  Code  Civ.  Proc,  §§4,  1042  (ten); 
Tennessee,  Annot.  Code   (1917),  §§4448-4465    (seven). 

In  some  states  the  statute  expressly  vests  title  in  the  adverse  possessor 
after  the  period  of  limitation.  Georgia,  Annot.  Code  (1914),  §  4168  (twenty); 
Mississippi,  Annot.  Code  (1917).  §  2458  (ten);  North  Carolina,  Stats.  (1919), 
§  430  (twentv);  Rhode  Island,  Gen.  Laws  (1909),  c.  256,  §  2  (ten);  Texas, 
Civ.  Stats.  (i913),  §5679  (three,  five.  ten).  See  Alaska,  Code  (1907),  Code 
Civ.  Proc,  §  1042  (seven);  New  Jersey,  Comp.  Stats.  (1913),  vol.  3,  p.  3172 
(sixty,  thirty);  North  Dakota,  Comp.  Laws  (1913).  §5471  (ten)  [see  §7362 
(twenty)];  Tennessee.  Annot.  Code  (1917),  §  4456  (seven).  Compare  Tich- 
bome  V.  Weir,  67  L.  T.  n.  s.  735;  OTnnncr  v.  Fohy,  [1905]   1.  I.  R.  1. 

1  See  Humbert  v.  Trinity  Church,  24  Wend.  587. 

2  Sees.  31-33  deal  with  actions  by  the  people  or  by  a  patentee  or  grantee 
of  the  people. 


SECT.  I J  STATUTES  OF  LIMITATION  31 

the  same  claim,  the  premises  so  included  are  deemed  to  have  been 
held  adversely;  excejjt  that  wliere  they  consist  of  a  tract  divided 
into  lots  the  possession  of  one  lot  is  not  deemed  a  possession  of  any 
other  lot. 

§  38.  For  the  purpose  of  constituting  an  adverse  possession,  by  a 
person  claiming  a  title  founded  upon  a  written  instrument  or  a 
judgment  or  decree,  land  is  deemed  to  have  been  possessed  and 
occupied  in  either  of  the  following  cases : 

1.  Where  it  has  been  usually  cultivated  or  imi)roved. 

2.  Where  it  has  been  protected  by  a  substantial  inclosure. 

3.  Where,  although  not  inclosed,  it  has  been  used  for  the  supjdy 
of  fuel  or  of  fencing  timber,  either  for  the  purposes  of  husbandry 
or  for   the  ordinary  use  of   the  occupant. 

Where  a  known  farm  or  a  single  lot  has  been  partly  improved, 
the  portion  of  the  farm  or  lot  that  has  been  left  not  cleared  or  not 
inclosed,  according  to  the  usual  course  and  custom  of  the  adjoining 
country,  is  deemed  to  have  been  occupied  for  the  same  length  of 
time  as  the  part  improved   and  cultivated. 

§  39.  Where  there  has  been  an  actual  continued  occupation  of 
premises  under  a  claim  of  title,  exclusive  of  any  other  right,  but 
not  founded  upon  a  written  instrument  or  a  judgment  or  decree, 
the  premises  so  actually  occupied,  and  no  others,  are  deemed  to 
have  been  held  adversely. 

§  40.  For  the  purpose  of  constituting  an  adverse  possession  by  a 
person  claiming  title  not  founded  upon  a  written  instrument  or  a 
judgment  or  decree,  land  is  deemed  to  have  been  possessed  and 
occupied   in   either  of  the   following  cases,   and   no   others: 

1.  Where  it  has  been  protected  by  a  substantial  enclosure. 

2.  Where  it  has  been  usually  cultivated  or  improved.^ 

§  41.  Where  the  relation  of  landlord  and  tenant  has  existed  be- 
tween any  persons  the  possession  of  the  tenant  is  deemed  the  pos- 
session of  the  landlord  until  the  expiration  of  twenty  years  after  the 
termination  of  the  tenancy ;  or,  Avhere  there  has  been  no  written  lease, 
until  the  expiration  of  twenty  years  after  the  last  payment  of  rent; 
notwithstanding  that  the  tenant  has  acquired  another  title  or  has 
claimed  to  hold  adversely  to  his  landlord.  But  this  presumption 
shall  not  be  made  after  the  periods  prescribed  in  this  section. 

§  42.  The  right  of  a  person  to  the  possession  of  real  property  is 
not  impaired  or  aifected  by  a  descent  being  cast  in  consequence  of 
the  death  of  a  person  in  possession  of  the  property. 

§  43.  If  a  person  who  might  maintain  an  action  to  recover  real 
property  or  the  possession  thereof,  or  make  an  entry,  or  interpose 
a  defense  or  counterclaim  founded  on  the  title  to  real  ])ro])erty  or 
to  rents  or  services  out  of  the  same,  is  when  his  title  first  descends 
or  his  cause  of  action  or  i-iglit  of  entry  first  accrues,  either: 

T-  See  CJnrk  v.  Corhrnn.  S.')  So.    fFl;i.)   250. 


32  SCHOOL    DISTRICT    NO.    4    V.    BENSON    ET    AL.        [CHAP.    II 

J.     Within  tlic  age  of  twcnty-oiic  yt'ar,s;  or 

2.  J  iisaiio ;  or 

3.  Iniprisoiio(l  on  a  criininal  charge,  or  in  execution  upon  con- 
viction of  a  criminal  offense,  for  a  term  less  than  life;  the  time  of 
such  a  disability  is  not  a  part  of  the  time  limited  in  this  article  for 
commencing  the  action  or  making  the  entry  or  interposing  the  de- 
fense or  counterclaim ;  except  that  the  time  so  limited  cannot  be 
extended  more  than  ten  years  after  the  disability  ceases  or  after 
the  death  of  the  person  so  disabled.^ 


B.    Operation  of  the  Statute 

STOKES   V.  BEERY 
2  Salk.  421.     1699. 

If  A.  has  had  possession  of  lands  for  twenty  years  without  inter- 
ruption, and  then  B.  gets  possession,  upon  which  A.  is  put  to  his 
ejectment,  though  A.  is  plaintiff,  yet  the  possession  of  twenty  years 
shall  be  a  good  title  in  him,  as  if  he  had  still  been  in  possession, 
Kuled  i)er  Holt,  C.  J.  The  same  point  was  ruled  by  Holt,  C.  J., 
at  Lent  Assizes  for  Bucks,  12  W.  3,  because  a  possession  for  twenty 
years  is  like  a  descent,  which  tolls  entry,  and  gives  a  right  of  pos- 
session, which  is  sufficient  to  maintain  an  ejectment.^ 


SCHOOL  DISTRICT  NO.  4  IN  WINTHROP  v.  BENSON 

ET  ALS. 

31  Me.  381.     1850. 

Writ  of  Entry.  There  was  evidence  tending  to  prove  that  tte 
land  formerly  belonged  to  the  ancestor  of  the  defendants;  and 
that  the  plaintiffs  had  occupied  a  portion,  or  the  whole  of  it,  for 
more  than  forty  years,  for  a  school-house,  woodshed,  and  woodyard. 

1  The  following  states  have  modelled  their  acts  on  the  New  York  statute: 
California,    Code    Civ.    Proc.    (1915),    §§318-328     (five    years);     Florida 

Comp.  Laws  (1914),  §§1718-1724  (seven);  Idaho,  Comp.  Stats.  (1919),  §§ 
6596-6606  (five);  Montana,  Rev.  Codes  (1907),  §§6432-6442  (ten);  Nevada 
Rev.  Laws  (1912),  §§4952-4956  (five);  North  Dakota,  Comp.  Laws  (1913), 
§§  7362-7372  (twenty),  see  §  5471  (ten);  South  Dakota,  Comp.  Laws  (1913), 
Code  Civ.  Proc,  §§  43-56  (twenty);  Utah.  Comp.  Laws  (1917),  §§  6449-6463 
(seven);  Wisconsin,  Stats.  (1915),  §§4207-4218  (twenty). 

2  See  Armstrong  v.  Ristcau,  5  Md.  256. 

If  A  is  in  possession  and  is  ousted  by  B,  B  cannot  show  title  in  a  third 
person  as  a  defence  to  ejectment.  Christy  v.  Scott,  14  How.  (U.  S.)  282; 
Bradshaw  v.  Ashley,  14  App.  Cas.  (D.  C.)  485;  Casey  v.  Kimviel,  181  III. 
154;  Adams  v.  Tiernan,  5  Dana  (Ky.)  394;  Cook  v.  Bertram,  86  Mich.  356; 
Jackson  d.  Duncan  v.  Harder,  4  Johns.  (N.  Y)  202;  Asher  v.  Whitlock. 
L.  R.  1  Q.  B.  1;  Perry  v.  Clusold,  [19071  A.  C.  73;  Waata  v.  Grice,  2 
N.  Z.  L.  R.  95,  117;  3  Harv.  L.  Rev.  323-326. 


SECT.    l]        SCHOOL    DISTRICT    NO.    4    V.    BENSON    ET    AL.  33 

It  was  proved  that  a  avoocUmi  st'liool-housc  was  orcctcd  there  hy  the 
plaintiffs  in  1802;  it  was  taken  down  and  a  hriek  school-house  was 
built  in  1818  on  the  lot,  near  the  site  of  the  woodcni  one.  A  wood- 
shed was  placed  near  the  brick  school-house  in  1824.  lu  1847  one 
Samuel  Wood  was  the  school  agent.  He  -was  called  by  the  defend- 
ants as  a  witness,  and  testified  that  he  procured  the  woodshed  to  be 
removed  in  the  spring  of  1847  from  the  northwesterly  end  of  the 
school-house  to  the  back  side  of  the  school-house  at  the  other  end; 
that  he  found  the  building  must  be  removed;  that  it  had  been  on 
another  man's  land  on  sufferance;  that  the  defendants  asserted  a 
title,  and  showed  it  to  him,  and  required  the  building  to  be  removed; 
that  he  became  satisfied  the  district  had  no  title  to  the  land,  and 
that  he  removed  the  building  for  that  reason.  That  the  expense  of 
removing  it  was  $25,  which  was  paid  by  the  town,  out  of  the  money 
assigned  to  that  district. 

The  plaintiffs  objected  to  said  Wood's  testimony,  as  not  legally 
admissible,  but  the  objection  was  overruled.  It  appeared,  from 
the  records  of  the  district,  that  in  June,  1847,  soon  after  the  re- 
moval of  the  shed,  they  had  a  meeting  and  took  action  for  sustaining 
whatever  claim  they  had  to  the  land. 

The  defendants  in  their  argument  contended  that  if,  in  1847,  the 
agent  of  the  school  district,  at  the  request  of  the  defendants,  re- 
moved the  woodhouse  to  its  present  location,  intending  to  relinquish 
and  give  up  the  land,  and  the  district  had  subsequently  ratified 
his  acts  by  their  conduct  or  otherwise,  of  which  they  were  the  judges ; 
then  such  abandonment,  notwithstanding  the  district  might  before 
that  time  have  had  an  open,  adverse,  exclusive  and  notorious  pos- 
session of  the  land,  or  some  part  of  it,  for  more  than  twenty  years, 
would  operate  an  abandonment  of  their  possession  and  a  surrender 
of  their  claim  to  the  former  owners  thereof,  and  the  plaintiffs  could 
not  recover  in  this  suit.  The  court,  in  opposition  to  the  argument 
of  the  plaintiffs'  counsel,  gave  such  instructions. 

The  verdict  was  for  the  defendants,  and  the  plaintiffs  excepted. 
Wells,  J.  The  jury  were  instructed  that  if,  in  1847,  the  agent  of 
the  school  district,  at  the  request  of  the  defendants,  removed  said 
woodhouse  where  it  now  is,  intending  to  relinquish  and  give  up 
the  land,  and  the  district  had  subsequently  ratified  his  acts  hy 
their  conduct  or  otherwise,  of  which  they  were  the  judges,  then  such 
abandonment,  notwithstanding  the  district  might  before  that  time 
have  had  an  open,  adverse,  exclusive  and  notorious  possessioji  of 
the  land,  or  some  part  of  it,  for  more  than  twenty  years,  would  operate 
an  abandonment  of  their  possession,  and  a  surrender  of  their  claim 
to  the  former  owners  thereof,  and  the  plaintiffs  could  not  recover 
the  said   land    in   this   suit. 

It  is  true,  that  a  mere  possession  of  land  of  itself  does  not  nec- 
essarily imply  a  claim  of  right.  The  tenant  may  hold  in  subjection 
to  the  lawful  owner,  not  intending  to  deny  his  right  or  to  assert 


34  SCHOOL   DISTRICT    NO.    4    V.    BENSON    ET   AL.        [CHAP.   II 

;i  (loniiuion  over  the  fee.  But  the  terms  open,  notorious,  adverse 
and  exclusive,  when  applied  to  the  mode  in  which  one  holds  lands, 
must  be  understood  as  indicating  a  claim  of  right.  They  constitute 
an  appropriate  defiuition  of  a  disseisin,  and  the  acts  which  they 
describe  will  have  that  effect  if  not  controlled  or  explained  by 
other  testimony.  Little  v.  Lihhey,  2  Greenl.  242;  The  Pr-oprietors  of 
Kennebec  Purchase  v.  John  Springer,  4  Mass.  416.  An  adverse 
possession  entirely  excludes  the  idea  of  a  holding  by  consent. 

If  the  plaintiffs  have  held  the  premises  by  a  continued  disseisin 
for  twenty  years,  the  right  of  entry  by  the  defendants  is  taken 
away,  and  any  action  by  them  to  recover  the  same  is  barred  by 
limitation.     Stat.  c.  147,  §  1. 

A  legal  title  is  equally  valid  when  once  acquired,  whether  it  be 
by  a  disseisin  or  by  deed;  it  vests  the  fee-simple,  although  the 
modes  of  proof  when  adduced  to  establish  it  may  differ.  Nor  is  a 
judgment  at  law  necessary  to  perfect  a  title  by  disseisin  any  more 
than  one  by  deed.  In  either  case,  when  the  title  is  in  controversy, 
it  is  to  be  shown  by  legal  proof;  and  a  continued  disseisin  for 
twenty  years  is  as  effectual  for  that  purpose  as  a  deed  duly  executed. 
The  title  is  created  by  the  existence  of  the  facts,  and  not  by  the 
exhibition  of  them  in  evidence. 

An  open,  notorious,  exclusive,  and  adverse  possession  for  twenty 
years  wovild  operate  to  convey  a  complete  title  to  the  plaintiffs,  as 
much  so  as  any  w-ritten  conveyance.  And  such  title  is  not  only  an 
interest  in  the  land,  but  it  is  one  of  the  highest  character,  the  ab- 
solute dominion  over  it;  and  the  appropriate  mode  of  conveying 
it  is  by  deed. 

1^0  doubt  a  disseisor  may  abandon  the  land,  or  surrender  his 
possession  by  parol,  to  the  disseisee,  at  any  time  before  his  disseisin 
has  ripened  into  a  title,  and  thus  put  an  entire  end  to  his  claim. 
His  declarations  are  admissible  in  evidence  to  show  the  character 
of  his  seisin,  whether  he  holds  adversely  or  in  subordination  to  the 
legal  title.  But  the  title,  obtained  by  a  disseisin  so  long  continued 
as  to  take  away  the  right  of  entry,  and  bar  an  action  for  the  land 
by  limitation,  cannot  be  conveyed  by  a  parol  abandonment  or  re- 
linquishment, it  must  be  transferred  by  deed.  One  having  such  title 
may  go  out  of  possession,  declaring  he  abandons  it  to  the  former 
owner,  and  intending  never  again  to  make  any  claim  to  the  land, 
and  so  may  the  person  who  holds  an  undisputed  title  by  deed;  but 
the  law  does  not  preclude  them  from  reclaiming  what  they  have 
abandoned  in  a  manner  not  legally  binding  upon  them.  A  parol 
conveyance  of  lands  creates  nothing  more  than  an  estate  or  lease 
at  will.     Stat.  c.  91,  §  30. 

The  excepfio7is  are  sustained  and  a  new  trial  granted.^ 

1  See  Font  v.  Williams,  118  Miss.  428. 

On  the  nature  of  the  adverse  possessor's  title,  see  Toltec  Ranch 
Co.    v.     Cook,    191     U.     S.    532,     542;     Price     v.     Lijon,     14     Conn.     279, 


SECT.    I J  HUGHES    V.    GRAVES  35 

HUGHES  V.  GRAVES. 
39  Vt.  359.    1867. 

This  cause  was  an  act  of  trespass  quare  clausum  f regit,  with 
counts  in  trespass  on  the  case  joined  agreeably  to  the  Statute.  The 
action,  by  the  agreement  of  the  parties,  was  referred,  to  be  decided 
according  to  law,  and  the  defendant  filed  exceptions  to  the  report 
of  the   referees. 

On  the  hearing  upon  the  said  report  and  exceptions  at  the  March 
Term,  1866,  Kellogg,  J.,  presiding,  the  court,  pro  forma,  decided  that 
the  plaintiff  was  entitled  to  recover  of  the  defendant  the  sum  of 
ten  dollars  for  his  damages,  as  stated  in  the  report,  and  rendered 
judgment  in  favor  of  the  plaintiff  on  the  report  accordingly.  To 
this  decision  and  judgment  the  defendant  excepted. 

The  referees  reported  as  follows :  "  The  plaintiff  and  defendant 
are  severally  the  owners  and  occupiers  of  adjacent  lots  of  land  in 
the  village  of  Fairhaven,  both  lots  being  originally  parcels  of  an 
entire  lot  and  each  party  deriving  title  to  his  lot  from  a  common 
source.  The  west  line  of  the  plaintiff's  lot,  as  shown  by  his  title- 
deeds,  runs  from  the  northwest  corner  of  his  dwelling-house,  south- 
erly to  the  northwest  corner  of  the  Whipple  lot.  This  line  formed 
the  eastern  boundary  of  an  ancient  highway,  discontinued  more  than 
fifty  years  since,  running  over  the  lot  of  the  defendant.  Joshua 
Quenton,  an  intermediate  grantor  of  the  plaintiff,  obtained  his  title 
to  the  lot  in  1806,  and  he  and  his  heirs  owned  and  occupied  it 
until  May,  1847.  During  this  period  the  Quentons  enclosed  with 
a  fence  a  strip  of  land  about  ten  feet  wide  at  the  north  end,  which 
extended  southerly  and  adjoining  the  plaintiff's  west  line  from  the 
said  northwest  corner  of  the  plaintiff's  dwelling-house,  to  and  beyond 
the  south  line  of  the  defendant's  lot  taken  from  said  ancient  high- 
way, making  a  portion  of  their  dooryard,  and  continued  to  occupy 
peaceably  and  adversely  claiming  it  as  their  own  for  more  than 
fifteen  years.  In  the  fall  of  1847  an  intermediate  grantor  of  the 
defendant  claims  this  strip  of  land,  sawed  the  fence  in  two  where 
the  south  line  of  the  defendant's  lot  would  strike  it.  But  the  fence 
after  two  or  three  months  was  rebuilt  by  the  plaintiff's  grantor,  and 
the  occupation  in  them  continued  till  March,  1861,  as  the  fence  Avas 


290;  Field  v.  Pccples,  180  111.  376,  383;  LaSallc  Cnal  Co.  v.  Scinl- 
tary  Dist.,  260  111.  423.  429;  Cndwdadcr  v.  Price,  111  Md.  310. 
319,  320;  Mortgage  Co.  v.  Butler.  99  Mi8s.  .56.  70;  Armijo  v.  Armijo.  4  N.  M. 
133;  Craffins  v.  Tottenham,  1  W.  Si  S.  (Pa.)  488;  .Jordan  v.  Chamber.'^,  226 
Pa.  573;  Coal  Creek  Co.  v.  Eaf^t  Tennessee  Co.,  105  Tenn.  563.  .574;  Earnest  v. 
Little  River  Co..  109  Tenn.  427;  Doe  v.  Sumner.  14  M.  &  W.  39;  Srott  v. 
Nixon,  3  Dr.  <fe  War.  388.  405.  407:  Rankin  v.  McMvrtry.  24  L.  R.  Ir.  290, 
297,  303;  Atkinson  &  Horsell's  Contract,  [1912]  2  Ch,  1.  And  see  note 
p.  39  post 


36  HUGHES    V.    GRAVES  [CHAP.    II 

still  standing  when  the  plaintiff  took  possession  under  his  deed, 
and  when  the  defendant  purchased  his  lot  in  April,  1862,  he  claimed 
it  and  in  the  summer  of  1862  erected  a  store  which  extended  eastward 
within  about  eight  inches  of  the  plaintiff's  dwelling  house  and  covered 
not  only  a  portion  of  the  strip  of  land  so  enclosed  by  the  Quentons 
taken  from  the  old  highway  and  the  plaintiff's  lot,  but  also  a  small 
portion  of  land  included  within  the  boundaries  of  the  plaintiff's  lot. 
None  of  the  deeds  prior  to  the  deed  of  Olive  Kelsey,  to  I.  Davey, 
of  March  23d,  1860,  by  and  through  which  the  plaintiff  claims  title 
to  his  lot,  in  their  boundaries  included  the  piece  of  land  enclosed 
by  Quenton  and  taken  from  said  old  highway,  and  which  actually 
formed  part  of  the  dooryard  to  the  plaintiff's  house.  If  the  court 
shall  be  of  opinion  that  the  plaintiff  takes  nothing  by  Quenton's 
possessory  title  because  the  land  so  claimed  was  not  included  in  the 
boundaries  of  his  deed,  then  we  only  find  for  the  plaintiff  to  recover 
of  the  defendant  seven  dollars  damages  and  his  costs,  otherwise 
we  find  for  the  plaintiff  to  recover  of  the  defendant  ten  dollars 
damages  and  his  costs."  ^ 

The  opinion  of  the  court  was  delivered  by 

Steele,  J.  The  plaintiff  is  in  actual  possession  and  by  his  deed 
from  Olive  Kelsey  is  entitled  to  the  benefit  of  her  possession.  Her 
possession  was  prior  to  any  possession  by  the  defendant  or  his  grant- 
ors. The  plaintiff  will  therefore  maintain  this  action  of  trespass 
as  against  the  defendant  by  virtue  of  mere  prior  possession,  unless 
the  defendant  has  a  right  to  the  possession.  It  is  then  the  defend- 
ant's right  and  not  the  plaintiff's  which  we  are  required  to  examine. 
The  defendant  shows  a  faultless  chain  of  title  on  paper,  but  it  turns 
out  he  does  not  own  the  land.  One  Quenton  acquired  the  ownership 
by  fifteen  years'  possession  adverse  to  the  defendant's  grantors. 
The  defendant's  chain  of  deeds  represents  nothing  in  the  disputed 
land  except  what  his  grantors  lost  and  Quenton  gained.  If  Quenton's 
title  had  been  by  deed  from  the  defendant  or  his  grantors,  it  is 
clear  the  defendant  could  not  lawfully  have  disturbed  the  plaintiff's 
prior  possession.  Quenton  had  no  deed,  but  his  adverse  possession 
for  the  statutory  period  gave  him  an  absolute  indefeasible  title  to 
the  land  against  the  whole  world  on  which  he  could  either  sue  or 
defend  as  against  the  former  owner.  That  being  the  case,  is  there 
sufficient  virtue  left  in  the  defendant's  paper  title  to  warrant  him  in 
disturbing  the  plaintiff's  possession?  Under  the  present  English 
Statute  of  Limitations  it  is  settled  there  would  not  be.  The  case 
would  stand  precisely  as  if  the  defendant  or  his  grantors  had  con- 
veyed to  Quenton.  The  plaintiff  would  be  liable  to  be  interrupted 
in  his  possession  only  by  Quenton  or  some  person  under  him.  Holmes 

1  The  deed  Joshua  Quenton  to  Olive  Kelsey  is  dated  Mav  25th,  1847.  The 
deed  Ohve  Kelsey  to  I.  Davey,  is  dated  March  23d,  1860.  The  deed  I.  Davey 
to  the  plaintiff,  is  dated  August  25th,  1860.  The  two  latter  deeds  embraced 
the  land  in  question.  —  Rep. 


SECT.    l]  HUGHES    V.    GRAVES  37 

^.  Neivland,  39  E.  C.  L.  48  (11  A.  &  E.  44).  In  Jakes  v.  Sumner, 
14  Mees.  &  Welsby,  41,  Parke,  B.,  remarking  npon  the  present  Eng- 
lish Statute  3  &  4  W.  IV.  c.  27,  says  the  effect  of  the  Act  is  to  make 
a  parliamentary  fonveyance  of  the  land  to  the  person  in  pos.session 
after  the  period  of  twenty  years  has  elapsed.  The  several  English 
Statutes,  and  their  supposed  points  of  difference,  are  commented 
upon  in  2  Smith's  Lead.  Cases,  469,  559  et  passim,  and  the  case 
Fenner  v.  Fisher,  Cro.  Eliz.  288,  is  cited  in  Holmes  v.  Newland,  ubi 
supra,  as  an  authority  under  the  previous  Statutes  against  the 
application  to  these  Statutes  of  the  full  extent  of  the  rule  applied 
to  the  Statute  of  William  IV.  Any  extended  discussion  of  these 
English  Statutes  would  be  unprofitable  here,  for  our  Statute,  though 
mainly  borrowed  at  the  outset  from  the  Statute  of  James,  was  some- 
what modified  when  transferred  to  Vermont,  and  has  been  materially 
altered  in  form  in  passing  through  the  several  revisions  to  which 
our  laws  have  been  subjected.  It  now  provides,  after  the  section 
relating  to  actions,  that  "no  persons  havinf/  right  or  title  of  entry 
into  houses  or  lands  shall  thereinto  enter  hit!  tritliin  fifteen  years 
next  after  such  right  of  entry  shall  accrue.''  The  first  section  takes 
away  the  remedy,  and  the  second  the  right.  G.  S.  p.  442,  §  §  1  and  2. 
The  title  is  vested  in  the  adverse  holder  for  the  statutory  period,  or, 
as  is  often  said,  "  the  adverse  possession  ripens  into  title."  As  a 
natural  consequence,  the  former  owner  is  divested  of  all  the  new 
owner  acquires.  This  interpretation  giving  to  adverse  possession 
for  fifteen  years  the  effect  of  a  conveyance,  best  accords  Avith  the 
other  well-settled  doctrines  upon  the  subject  of  limitations  as  applied 
to  real  property.  A  covenant  to  convey  perfect  title  is  satisfied  by 
conveying  a  title  acquired  under  the  Statute.  In  this  country,  as 
in  England,  an  agreement  made  after  the  lapse  of  the  statutory 
period  to  waive  the  benefit  of  the  Statute  is  not  effective,  but  the 
title  remains  in  the  party  who  has  acquired  it  under  the  Statute, 
notwithstanding  his  waiver,  until  ho  conveys  it  back  with  all  the 
solemnities  required  in  any  deed  of  land.  In  language  of  the  books, 
"  by  analogy  to  the  Statute  of  Limitations,  we  presume  a  grant  of 
incorporeal  riglits  after  adverse  uses  for  fifteen  years."  It  Avould  cer- 
tainly be  an  artificial  construction  of  the  Statute  which  would 
make  it  a  mere  bar  to  the  owner's  right  against  the  person  only 
who  occupied  adversely.  It  relates  to  the  rights  of  the  party  to 
the  land.  It  makes  no  reference  to  persons.  In  this  case,  if  the 
plaintiff's  enjoyment  of  the  land  subjects  him  to  an  action  or  entry 
by  Quenton  on  the  ground  tliut  Quenton  and  not  the  defendant 
is  the  true  owner,  it  ought  not  at  the  same  time  to  subject  him  to 
action  or  entry  by  the  defendant,  on  the  ground  that  the  defendant 
is  the  true  owner  of  the  land.  We  are  satisfied  that  no  title  remains 
in  the  defendant,  and  that  under  our  Statute  he  has  no  right  to 
the  possession.  It  has  been  held  that  a  plaintiff  in  possession  with- 
out right  could  maintain  trespass  against  even  the  true  owner  for 


38  HUGHES    V.   GRAVES  [CHAP.    II 

a  disturbance,  while  the  right  of  possession  was  in  a  third  person 
by  lease  from  the  owner.  Phillips  v.  Kent  and  Miller,  3  Zabriskie, 
N.  J.  Rep.  155.  Here  neither  the  right  of  possession  nor  th(!  owner- 
ship was  in  the  defendant. 

The  plaintiff  claims  that  upon  a  correct  construction  of  the  deeds 
he  has  Quenton's  title.  This  point  we  have  not  decided.  The  plain- 
tiff's prior  possession  will  enable  him  to  recover  as  against  the 
defendant  whose  grantors  suffered  Quenton  to  acquire  the  land  by 
adverse  possession  for  the  statutory  period.     Judgment  affirmed} 

C.    Disseisin   and   Adverse    Possession. 

Lit.  §  279.  And  note  that  disseisin  is  properly,  where  a  man 
entreth  into  any  lands  or  tenements  where  his  entry  is  not  congeable, 
and  ousteth  him  which  hath  the»freebold  &c. 

Co.  Lit.  181  a.  And  note  here  that  every  entry  is  not  disseisin, 
unlesse  there  be  an  ouster  also  of  the  freehold.  And  therefore  Little- 
ton doth  not  set  down  an  entrie  only  but  an  ouster  also,  as  an 
entry  and  a  claimer,  or  taking  of  profits,  etc. 

1  Rolle's  Abr.  659,  pl.  5.  If  a  man  has  a  house,  and  locks  it,  and 
departs,  and  another  comes  to  the  house,  and  takes  the  key  of  the 
door  into  his  hand,  and  says  that  he  claims  the  house  to  himself 
in  fee,  and  without  any  entry  into  the  house,  this  is  a  disseisin  of 
the  house. 

1  See  Wilkes  v.  Greenway,  decided  by  the  Court  of  Appeal  (Lord  Esher, 
M .  R.,  Lindley  and  Boiven,  L.  JJ .),  in  1890,  and  reported  in  6  Times  L.  R. 
449.  The  plaintiff  admitted  that  the  defendant  had  acquired  by  virtue  of 
the  Statute  of  Limitations  title  to  certain  premises  surrounded  by  other  land 
of  the  plaintiff,  but  denied  that  he  had  acquired  a  right  of  way  by  necessity 
to  such  land.  The  Master  of  the  Rolls  said:  "The  one  point  argued  before 
us  has  been  whether,  assuming  the  premises  to  have  passed  to  the  defendant 
by  virtue  of  the  Statute  of  Limitations,  a  right  of  way  over  this  approach 
inevitably  came  into  existence  over  the  plaintiff's  remaining  land  as  a  way 
of  necessity  and  as  distinct  from  any  other  way.  This  point  may  be  one 
which  only  becomes  possible  either  on  a  statement  of  facts  that  is  incomplete 
or  assumptions  of  law  that  are  not  settled.  On  the  hypotheses,  however,  so 
presented  to  us,  and  without  further  knowledge  of  the  facts,  we  can  only 
say  that  there  is  nothing  in  the  Statute  of  Limitations  to  create  ways  of 
necessity.  The  Statute  does  not  expressly  convey  any  title  to  the  possessor. 
Its  provisions  are  negative  only.  We  cannot  import  into  such  negative 
provisions  doctrines  of  implication  that  would  naturally  arise  where  title 
is  created  either  by  express  grant  or  by  statutory  enactment.  The  title 
to  the  premises  is  not  a  title  by  grant.  The  doctrine  of  a  way  of  necessity 
is  only  applied  to  a  title  by  grant,  personal  or  parliamentary." 

In  Schall  V.  Williams  Valley  R.  R.  Co.,  35  Pa.  191,  the  court  said  that 
titles  matured  under  the  Statute  of  Limitations  were  not  within  the  re- 
cording Acts.  A.  acquired  such  a  title  and  then  abandoned  the  possession 
of  the  land;  B.  purchased  from  the  persons  having  the  record  title,  without 
notice  of  A's  rights.     Held,  that  the  title  to  the  land  continued  in  A. 

See  Virginia  Coal  Co.  v.  Charles,  251  F.  R.  83,  156,  254  F.  R.  379.  255 
F.  R.  992;   LaSalle  v.  Sanitary  District,  260  111.  423,  429;  Shaughnessey  v. 


SECT,    ij  BLUNDEN    V.    BAUGH  39 

BLUNDEN  V.  BAUGH. 

Cro.  Car.  302.     1632. 

Error  of  a  judgment  in  the  Common  Pleas.  Baugh  brought  an 
ejectment  of  lands  in  Blechingley  of  the  demise  of  Charles  Earl  of 
Nottingham  against  Blunden.  Upon  Xot  guilty  pleaded,  a  special 
verdict  was  found,  that  39  Eliz.  Charles  Lord  Howard,  Lord  Admiral, 
being  seised  of  the  said  laud  in  tail,  by  indenture  covenanted,  in 
consideration  of  marriage  betwixt  Sir  William  Howard  his  eldest 
son  and  heir  and  Elizabeth  daughter  and  heir  of  Lord  St.  John,  to 
suffer  a  recovery  of  those  lands  to  the  use  of  the  said  William  and 
Elizabeth,  and  the  heirs  males  of  the  body  of  the  said  William,  with 
divers  remainders  over;  that  the  marriage  took  effect,  and  the  said 
William  entered  by  the  assent  of  his  father  and  occupied  at  his 
will;  and  in  4  Jac.  1,  by  indenture  demised  that  land  to  Thomas 
Humphrys  and  John  Humphrys  for  twenty-one  years,  rendering 
£115  rent:  they  enter,  and  were  possessed  prout  lex  postulat:  and 
being  so  possessed,  w444i  said  Charles,  then  Earl  of  i^ottingham, 
and  the  said  William,  then  Lord  Effingham,  by  indenture  covenanted 
with  Sir  Kobert  Dormer  and  others  (for  that  the  said  indenture 
of  39  Eliz.  was  not  executed  for  the  performance  of  the  assurances 
and  uses  comprised  therein)  to  levy  a  fine  of  those  lands  to  the  use 
of  the  said  William  Lord  Effingham  and  Elizabeth,  for  a  jointure 
for  the  said  Elizabeth,  and  to  the  heirs  males  of  the  body  of  the 
said  William,  the  remainder  over  as  in  the  indenture,  &c. ;  which  fine 
was  levied  accordingly,  and  to  the  uses  in  the  said  indenture  men- 
tioned:  that  in  9  Jac.  1,  the  said  William  Lord  Effingham  died 
without  issue  male  of  his  body;  and  John  Humphrys  died:  and  in 
14  Jac.  1,  Thomas  Humphrys  being  seised  or  possessed  prmif  lex 
postulat,  by  indenture  enrolled  within  six  months,  in  consideration 
of  a  competent  sum  of  money,  bargained  and  sold  the  said  lands  to 
Charles  Lord  Effingham,  son  and  heir  apparent  to  the  earl,  and 
his  heirs.  Charles  Earl  of  N^ottingham  dies;  Charles,  now  Earl  of 
Nottingham,  being  his  son  and  heir,  entered.  Blunden,  the  defend- 
ant, by  the  command  of  the  said  Elizabeth,  entered  and  claimed  it 
as  her  jointure.  And  Charles,  now  Earl  of  Nottingham,  son  and 
heir  of  the  said  Charles  Earl  of  Nottingham  the  Lord  Admiral, 
entered,  and  made  a  lease  for  three  years  to  the  plaintiff,  who 
entered;  and  the  defendant,  as  servant  of  the  said  Elizabeth,  and 
by  her  command,  ousted  him.  .Vnd  if  super  totam  mafcriam  the 
court  should  adjudge  for  the  plaintiff,  they  found  for  the  plaintiff; 
if  otherwise,  for  the  defendant;  nnd  they  found  the  snid  Elizabeth 
to  be  yet  alive. 


Leary,  162  Mass.  108.  112;  McCIanahan  v.  N  d-  W.  Ri/.  Co..  122  Va.  70.">: 
Tichhornr  V.  Wrir.  67  L.  T.  x.  s.  73.5:  In  re  Jollv.  FlOOOl  1  Ch.  292.  flOOOl 
2  Ch.  616;  Ni<ihpt  d-  PottR'  Contrnrt,  \\90ri}  1  Ch.  391.  [19001   1  Ch.  .3,S6. 


40  BLUNDEN    V.    BAUGH  [CHAP.    II 

After  arguments  at  the  bar  in  the  Common  Pleas  and  at  the  bench, 
it  was,  by  the  opinion  of  Richardson,  Chief  Justice,  Hutton,  and 
Vernon,  adjudged  for  the  plaintiff,  against  the  opinion  of  Harvey, 
Justice,  who  argued  strongly  for  the  defendant.  And  hereupon  a 
writ  of  error  was  brought,  and  the  error  assigned  only  in  the  matter 
of  law.  And  it  was  divers  times  very  well  argued  at  the  bar  by 
Littleton,  Recorder  of  London,  and  Serjeant  Brampston,  for  the 
defendant  in  the  writ  of  error,  and  by  CaUhrop  and  Serjeant  Hen- 
den,  for  the  plaintiff ;  and  afterward  by  all  the  Justices  of  the  King's 
Bench  seriatim-. 

And  Jones,  Berkley,  and  Myself  held,  that  the  judgment  was 
erroneous.  The  main  question  was.  Whether  by  any  of  these  acts 
there  was  a  disseisin  committed  to  Charles  Earl  of  Nottingham 
nolens  volens;  and  if  there  be  a  disseisin,  who  should  be  the  dis- 
seisor and  tenant  to  the  freehold  ?  And  to  the  first  Jones,  Berkley, 
and  Myself  held,  that  the  law  will  not  impute  nor  construe  it  to 
be  a  disseisin  unless  at  the  election  of  Charles  Earl  of  Nottingham, 
when  as  none  of  the  parties  intended  it  to  be  a  disseisin,  nor  to  oust 
him  of  the  possession;  for,  as  Co.  Lit.  153  b,  defines,  "A  disseisin 
is  when  one  enters,  intending  to  usurp  the  possession,  and  to  oust 
another  of  his  freehold ;"  and  therefore  qucerendum  est  a  judice,  quo 
animo  hoc  fecerif,  why  he  entered  and  intruded;  and  it  is  at  the 
election  of  him  to  whom  the  wrong  is  done,  if  he  will  allow  him  to 
be  a  disseisor,  or  himself  out  of  possession ;  and  therefore  if  one 
receive  my  rent,  it  is  at  my  election  if  I  will  charge  him  with  a 
disseisin,  by  bringing  an  assise  or  other  action,  or  have  an  account. 
And  if  an  infant  makes  a  lease  for  years  rendering  rent,  and  the 
lessee  enter,  it  is  at  the  election  of  the  infant  to  charge  him  in  assise, 
or  to  bring  debt  for  the  rent,  or  to  accept  the  rent  at  his  full  age,  as 
7  Edw.  4,  6,  and  other  books  be.  So  it  is  if  one  enters,  claiming  as 
guardian  in  socage,  or  by  nurture,  where  he  is  not,  it  is  at  the  election 
of  the  infant  to  bring  an  assise,  or  to  charge  him  as  guardian,  thereby 
admitting  him  to  be  in  without  wrong;  as  49  Edw.  3,  10;  40  Edw.  3; 
"Accompt,"  35  and  33  Hen.  6,  2,  and  many  other  books  be.  And  ten- 
ant at  will  is  at  the  will  of  both  parties ;  and  the  will  shall  not  be  de- 
termined by  every  act.  Vide  28  Hen.  8;  62  Kelway;  20  Hen.  7,  65.  So 
where  a  feme  lessee  at  will  takes  husband,  or  a  feme  makes  a  lease  at 
will,  and  takes  husband,  although  the  feme  hath  put  her  will  in  her 
husband,  yet  it  shall  not  be  said  a  determination  without  the  election 
of  the  lessor  or  husband  to  the  contrary.  38  Hen.  8 ;  Dyer,  62.  Lessee 
surrenders,  and  yet  occupies,  he  is  no  disseisor,  but  at  the  pleasure 
of  the  lessor,  11  Ass.  6,  where  a  man  makes  a  feoffment  and  con- 
tinues in  possession :  and  the  common  case  where  a  copyholder  makes 
a  lease  for  years,  not  warranted  by  the  custom,  yet  it  is  no  disseisin ; 
and  the  law  accounts  it  a  good  lease  betwixt  lessor  and  lessee  and 
all  estrangers :  and  to  that  purpose  Avas  cited  Hilary,  18  Jac.  1,  Rot. 
792,  Sfreat  v.  Virrall,  ejectione  frmcp  brought  upon  such  a  lease; 


SECT,    l]  BLUNDEN    V.    BAUGH  41 

aud  upon  special  verdict  adjudged  for  tiie  plaintiff,  that  it  is  a  good 
lease  against  all  but  the  lord.  And  they  all  relied  upon  another 
judgment  in  the  point,  betwixt  Powsley  v.  Blackmail,  Cro.  Jac.  659, 
where  one  Carr  bargains  and  sells  land,  by  indenture  enrolled,  to 
Bertram,  upon  condition  that  upon  payment  of  three  hundred  pounds 
at  the  end  of  three  years  it  should  be  void;  and  that  in  the  interim 
the  bargainee  should  not  meddle  with  the  profits  of  the  land.  The 
bargainor  occupies  and  makes  a  lease  for  five  years,  and  at  the  day 
doth  not  pay  the  money;  the  bargainee  doth  not  enter,  but  (the 
bargainor  occupying  it)  he  devised  that  land :  and  it  was  adjudged 
a  good  devise;  but  if  he  had  been  disseised,  the  devise  had  been 
void.  And  here  it  shall  not  be  intended  that  the  son  intended  to 
disseise  his  father,  but  that  the  lease  was  made  by  the  assent  of  the 
father :  also  the  party  to  whom  the  lease  is  made  doth  not  claim 
any  freehold,  but  to  have  the  lease  only,  and  to  pay  his  rent,  and 
pays  the  rent  accordingly ;  so  there  was  no  intent  in  any  of  the  parties 
to  make  a  disseisin,  then  the  law  shall  not  construe  it  to  bo  a  dis- 
seisin partihus  invitis.  And  hereby  it  follows,  that  the  freehold 
remains  in  the  Earl  of  Nottingham  until  the  fine  levied  by  him 
and  his  son;  and  so  the  uses  well  raised,  and  the  jointure  well 
assured.^ 

Secondly,  admitting  there  were  a  disseisin  committed  by  these  acts, 
the  question  is.  Who  is  disseisor  and  tenant  of  the  freehold?  And 
Jones,  Berkley,  and  Myself  held,  that  William  Lord  Effingham, 
who  made  the  lease,  is  the  disseisor  and  tenant;  for  when  tenant 
at  will  takes  upon  him  to  make  a  lease  for  years,  which  is  a  greater 
estate  than  he  may  make,  that  act  is  a  disseisin,  and  by  tliis  lease  for 

1  "  Disseisin  by  election.  An  assise  of  novel  disseisin  was  an  action  for 
the  recovery  of  the  possession  of  land,  introduced  probably  about  1175. 
It  was  considered  a  speedy  remedy.  An  allegation  of  a  disseisin  by  which 
the  demandant  had  been  wronged  was  requisite;  but  this  allegation  might 
be  supported  by  the  proof  of  acts  which  did  not  constitute  an  actual  dis.seisin. 
Such  acts  were  held  to  constitute  a  di.sseisin  only  at  the  election  of  the  de- 
mandant and  in  order  that  he  might  avail  himself  of  this  speedy  remedy. 
An  actual  disseisin  was  the  foundation  of  rights  in  the  disseisor;  it  operated 
to  the  prejudice  of  the  disseisee.  A  disseisin  by  election  afforded  him 
a  convenient  remedy  through  which  to  enforce  his  rights. 

In  Taylor  d.  Atkijns  v.  Horde,  1  Burr.  60  (1757),  A.  had  been  entitled 
to  certain  lands  for  life,  remainder  to  B.  in  tail,  remainder  to  C.  in  tail.  B. 
had  brought  ejectment  against  A.  and  reco\-ered  (but  on  what  grounds  did 
not  appear).  B.,  being  in  possession,  had  enfeoffed  D.  in  fee.  and  D.  had  there- 
upon suffered  a  recovery  to  the  use  of  B.  and  his  heirs.  Did  D.  by  the  entr>' 
unfler  this  tortious  feoffment  become  a  disseisor  and  therefore  a  good  tenant 
to  the  praecipe f  Lord  Mansfield  was  of  opinion  that  such  entr>'  was  a 
disseisin  only  at  the  election  of  the  persons  whose  estates  would  be  preju- 
diced by  the  recovery.  This  was,  in  effect,  to  hold  that  acts  which,  under 
the  older  authorities,  had  amounted  to  an  actual  disseisin  did  so  no  longer. 
See  Butler's  Note  to  Co.  Lit.  330  b,  and  4  Kent    Com.  483-490. 

By  8  &  9  Vict.  c.  106  (1845),  it  was  provided  that  a  feoffment  made  after 
a  date  therein  specified  should  not  have  any  tortious  operation."  3  Gray.  Cas. 
on  Prop.,  2(1  ed.  p.  34. 


42  BLUNDEN    V.    BAUGH  [CHAP.    II 

years  made,  and  the  lessee's  entering  and  paying  the  rent  unto  him, 
and  he  accepting  thereof,  he  is  in  as  lessee,  and  the  lessor 
is  the  disseisor,  and  hath  the  reversion  expectant  upon  this 
lease;  and  this  lease  betwixt  them  is  an  interest  derived  out 
of  the  inheritance  gained  by  this  disseisin :  for  if  a  lessee  for 
years  makes  a  feoffment,  although  it  be  a  disseisin  to  the 
lessor,  yet  it  is  a  good  feoffment  betwixt  them  de  facto,  though 
not  de  jure,  and  the  feoffee  is  in  the  per;  as  4  Edw.  2,  Brev.  403 ;  19 
Edw.  2,  Brev.  770;  15  Hen.  3,  Brev.  878;  F.  N.  B.  201;  8  Hen.  7.  6, 
per  fineux  temp.  Edw.  1,  Counterplee  de  Voucher,  126;  and  Co.  Lit. 
367  a.  And  warranty  may  be  annexed  to  such  an  estate,  upon  which 
he  may  vouch,  as  50  Edw.  3,  12.  And  if  such  lessee  for  years,  or  at 
will,  makes  a  gift  in  tail,  or  a  lease  for  life,  that  creates  a  good  lease 
or  a  good  gift  in  tail  amongst  themselves  and  all  others,  besides  the 
first  lessor;  and  as  to  him  they  are  both  disseisors,  as  it  appears 
by  the  books  14  Edw.  4,  6;  18  Edw.  3,  Issue,  36;  7  Edw.  3,  Issue, 
7;  14  Edw.  3,  Feoffments  et  Fayts,  67.  So  it  is  where  a 
lessee  at  will  makes  a  lease  for  years,  especially  by  indenture,  it 
is  a  good  lease  between  them,  and  debt  lies  for  the  rent;  and  the 
lessee  shall  not  avoid  it  but  by  an  ouster  by  the  first  lessor,  as  22 
Hen.  7,  26,  is.  And  Jones  cited  Spark  v.  Spark,  Cro.  Eliz.  676, 
where  lessee  at  will  made  a  lease  for  years,  and  he,  being  ousted  by 
a  stranger,  brought  an  ejectment  and  recovered;  and  betwixt  Streat 
and  Virrall,  ut  supra.  And  so  it  was  resolved  in  this  court,  28  Eliz. 
that  an  ejectione  flrmxe  lies  upon  a  lease  made  by  a  copyholder  not 
warranted  by  custom  against  any  stranger;  and  the  Year-Book  of 
12  Edw.  4,  13,  is  directly  to  the  point:  so  here,  when  lessee  for  years 
enters  according  to  the  lease  and  pays  his  rent,  the  freehold  betwixt 
them  shall  be  in  William  Lord  Effingham,  who  made  the  lease,  and 
not  in  Humphrys,  who  is  only  lessee ;  and  then  the  fine  levied  by  the 
Earl  of  iS^ottingham  and  his  son  conveys  well  the  freehold,  and 
the  uses  are  well  raised  upon  this  fine,  and  the  jointure  well  settled; 
and  then  during  her  life  the  Earl  of  Nottingham  hath  no  title  to 
make  a  lease:  wherefore  the  judgment  ought  to  be  reversed;  and  so 
much  the  rather  for  the  great  mischief  which  would  ensue,  if  one 
who  hath  a  tenant  at  will,  who  makes  a  lease  for  a  small  time,  and 
the  first  lessor,  not  knowing  thereof,  levies  a  fine  for  a  jointure  for 
his  wife,  or  to  perform  his  will,  or  to  other  uses,  (Src.  if  he  should  be 
adjudged  disseised,  and  as  a  disseisee  to  levy  a  fine  which  should  tend 
to  the  benefit  of  the  lessee  for  years,  and  be  adjudged  a  disseisor 
against  his  intent  or  knowledge,  as  in  this  case  is  pretended,  many 
should  lose  their  inheritances.  In  many  manors  are  divers  tenants 
at  will,  where  the  father  is  tenant  at  will,  and  after  him  the  son 
enters  and  occupies  at  the  will  of  the  lord,  and  is  so  reputed,  and  the 
lord  allows  them,  and  never  accounted  them  as  disseisors;  if  such 
tenants  at  will  make  under-leases  for  a  year,  or  for  half  a  year, 
if  the  lords  of  those  manors  levy  fines  of  tliose  manors,   and  this 


SECT.    l]  BLUNDEN    V.    BAUGH  43 

should  tend  to  the  benefit  of  the  under-lessees,  who  should  be  reputed 
to  be  disseisors  without  the  intent  of  any  of  the  parties,  many  lords 
should  hereby  be  disinherited;  whereupon  they  concluded,  that  Hum- 
phrys  the  lessee  was  neither  disseisor  nor  tenant,  but  only  William 
Lord  Effingham,  and  he  is  the  disseisor  and  tenant;  and  the  fine  levied 
by  Charles  Earl  of  Nottingham,  and  William  Lord  Effingham  his 
son,  is  a  good  fine,  and  the  uses  well  raised,  whereby  Elizabeth 
the  wife  of  the  said  William  Lord  Effingham  hath  good  title,  and 
the  defendant  under  her.  Wherefore  the  judgment  ought  to  be  re- 
versed. 

But  Richardson,  Chief  Justice,  argued  to  t\\v  contrary,  and  con- 
tinued his  former  opinion,  that  Humphrys  is  the  desseisor,  and  was 
tenant  of  the  freehold  at  the  time  of  the  fine  levied :  and  then  the  fine 
by  the  Earl  of  Nottingham  (being  a  disseisee,  and  his  son  William 
Lord  Effingham  adjutor  to  the  dissesin)  shall  inure  to  bar  the  right 
of  the  Earl  of  JSTottingham,  and  for  the  benefit  of  the  said  Humphrys, 
according  to  the  opinion  in  2  Co.  56,  BucMer's  Case;  and  that  he  is  a 
disseisor  to  the  Earl  of  Nottingham,  not  at  his  pleasure,  but  de  ne- 
cessario;  for  a  disseisin  is  a  tortious  ousting  of  any  one  from  his 
seisin :  and  here  this  taking  of  the  lease  by  Humphrys  from  Lord 
Effingham  tenant  at  will,  and  his  entering  by  color  of  the  said  lease, 
is  a  disseisin.  And  here  is  an  entry  usurpando  jus  (illeiitnn  without 
consent  of  the  Earl  of  Nottingham:  and  as  tenant  at  will  may  not 
grant  his  estate,  as  27  Hen.  6,  pi.  3,  is,  no  more  may  he  make  an 
estate;  and  the  Earl  of  Nottingham  hath  no  election  to  say  it  is 
no  disseisin.  But  he  agreed  to  the  case,  where  an  infant  makes  a 
lease  for  years,  reserving  rent,  and  the  lessee  enters,  the  infant  hath 
election  to  allow  him  to  be  his  tenant,  or  to  be  a  disseisor,  which  is 
most  for  his  advantage :  so  where  one  enters  and  claims  as  guardian 
and  occupies,  the  infant  may  allow  him  either  disseisor  or  accomp- 
tant,  which  shall  be  for  his  best  advantage. 

Secondly,  he  held,  that  Humphrys  is  the  sole  disseisor  and  tenant 
of  the  freehold;  for  he,  by  his  entry,  did  the  sole  act  which  made 
the  disseisin:  for  the  lease  for  years  is  merely  a  void  contract;  and 
when  one  enters  by  color  of  a  void  conveyance,  he  is  the  disseisor, 
as  in  Crofts  v.  Iloivels,  Plow.  530,  where  a  guardian  assigned  dower 
to  a  feme  who  is  not  dowable,  and  she  enters,  by  her  entry  she  is  a 
disseiseress,  24  Edw.  3,  pi.  43.  If  one  enters  by  color  of  a  void  extent, 
it  is  at  the  peril  of  him  who  enters  and  takes  the  ])rofits,  to  see 
by  what  right  he  enters.  And  he  denied  that  the  making  of  a  lease 
for  years,  is  either  an  express  or  implied  command  to  enter  or  make 
a  disseisin.  And  he  denied  that  the  making  of  a  lease  for  years 
had  gained  the  reversion  to  the  lessor;  but  if  lessee  for  year-?,  or  at 
will,  makes  a  lease  for  life,  or  a  gift  in  tail,  he,  by  making  livery, 
transfers  the  freehold,  and  gains  to  himself  the  inheritance,  but 
by  a  nude  and  void  contract  lie  cannot  gain  the  reversion.  Where- 
upon  he   concluded,   that    Humphrys    is   the   disseisor    and    tenant, 


44  BOND    V.    o'gARA  [chap.   II 

and  tliat  the  fiue  inures  to  the  benefit  of  Humphrys,  and  not  to  the 
limitation  of  the  uses  in  the  indenture,  because  none  of  the  parties 
had  anything  in  the  land  at  the  time  of  the  fine  levied;  aad  that 
the  judgment  ought  to  be  affirmed. 

But  afterwards,  for  the  reasons  of  us  three,  the  judgment  was  re- 
versed. 

JSTote,  Sir  Robert  Heath,  Chief  Justice  of  the  Common  Pleas, 
Crawley,  Justice,  Baroim  Den  ham,  and  Baron  Trevor,  agreed  with 
this  judgment  in  the  King's  Bench;  and  conceived,  that  it  would 
be  very  mischievous  if  it  should  be  adjudged  otherwise.  But  Sir 
Humphry  Davenport  seemed  to  doubt  whether  the  lessee  for  years 
ought  not  strictly  to  be  taken  for  the  disseisor  and  tenant.^ 


BOND  V.  O'GARA 
177  Mass.  139.     1900. 


Writ  of  entry,  to  recover  a  tract  of  land  situated  in  Leicester. 
Plea,  general  issue.  Trial  in  the  Superior  Court,  before  Gashill, 
J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  follows. 

The  demandant  claimed  title  through  a  deed  to  him  on  the  prem- 
ises by  one  Lanphear,  dated  March  11,  1899.  Lanphear's  title 
came  from  a  deed  dated  January  5,  1899,  also  delivered  on  the  land, 
to  him,  by  Kate  Hanlon  and  her  children,  being  the  children  and 
heirs  of  her  deceased  husband,  John  Hanlon.  The  tenant  claimed 
title  through  a  lease  from  the  heirs  of  one  Olney,  deceased,  dated 
December  9,  1898.  The  paper  title  was  shown  to  be  in  the  heirs  of 
Olney  by  a  series  of  conveyances  beginning  with  the  deed  of  one 
Burr  to  Buchanan,  June  4,  1863.  The  demandant  claimed  that 
John  Hanlon  or  his  widow,  Kate  Hanlon,  or  his  heirs  who  signed 
the  deed  to  Lanphear,  had  acquired  a  title  to  the  premises  by  pos- 
session for  twenty  years. 

There  was  evidence  tending  to  show  that  John  Hanlon  entered 
upon  the  premises  about  the  year  1864,  cut  the  wood  and  timber, 
and  thereafter  occupied  the  same  for  a  garden  and  for  pasturing 
his  cow  and  for  other  purposes,  the  evidence  tending  to  show  that 
this  occupation  was  exclusive  and  continuous.  There  was  evidence 
tending  to  show  that  John  Hanlon  entered  upon  the  premises 
either  in  pursuance  of  a  verbal  gift  of  the  land  to  him  by  Samuel 
L.  Hodges,  or  by  a  permission  to  occupy  the  same  granted  to  him 
by  Hodges,  who  became  owner  of  the  premises  by  a  deed  from  Pat- 

1  In  Mayor  and  Commonaltv  oj  Norwich  v.  Johnson,  3  Lev.  35,  the 
court  said :  "  The  Claim  of  the  Tortfeasor  cannot  create  a  particular  Estate, 
and  so  apportion  his  own  Wrong:,  but  of  Necessity  he  is  a  Disseisor  in  Fee; 
because  there  is  no  particular  or  other  Estate  in  esse." 


SECT.    l]  BOND    V.    o'gARA  45 

riek  Hanover,  dated  October  30,  1865,  and  Hodges  conveyed  the 
same  to  one  Gilbert  and  others  on  October  19,  1866.  John  Hanlon 
died  in  1873,  and  thereupon  his  widow  continued  to  occupy  the 
premises  in  the  way  in  which  her  husband  had  done,  and  in  the  way 
in  which  she  occupied  the  adjoining  farm,  the  title  to  which  was 
in  John  Hanlon  at  the  time  of  his  death.  Some  of  her  children, 
the  heirs  of  John  Hanlon,  lived  with  her  and  worked  on  the  prem- 
ises in  question.  The  evidence  tended  to  show  that  this  occupation 
of  John  Hanlon  during  his  life  and  that  of  Kate  Hanlon  was  open 
and  continuous  and  exclusive,  and  the  principal  question  in  con- 
troversy was  whether  the  occupation  was  under  a  claim  of  right 
or  under  a  license  or  permission  from  Hodges.  Kate  Hanlon  testi- 
fied, and  some  of  her  children  testified,  and  there  was  evidence 
tending  to  show  that  the  occupation  was  under  the  claim  that  Samuel 
L.  Hodges  had  given  the  land  to  John  Hanlon,  and  that  Kate  claimed 
to  occupy  it  as  her  own  because  Hodges  had  given  it  to  her  husband. 

This  evidence  was  controverted  by  the  tenant,  who  put  in  evidence 
that  said  Kate  Hanlon  had  stated  that  Hodges  had  given  to  her 
husband  and  herself  the  right  to  occupy  the  premises  and  the  right 
to  cut  the  grass,  etc.  The  deeds  from  Burr  to  Buchanan,  from  Bu- 
chanan to  Hanover,  and  from  Hanover  to  Hodges,  reserved  a  right 
to  the  Leicester  Reservoir  Company,  whose  pond  bordered  on  the 
premises,  to  take  material  for  its  dam  from  the  premises;  and  there 
was  evidence  that  an  employee  of  the  Leicester  Reservoir  Company 
had  crossed  the  premises  and  had  torn  down  a  fence  within  twenty 
years,  which  had  been  put  up  by  Kate  Hanlon,  and  that  thereupon 
Kate  Hanlon  had  restored  the  fence.  After  the  employee  had  torn 
it  down  the  second  time  she  left  an  opening  where  he  could  go 
through,  and  thereafter  the  fence  was  left  undisturbed. 

There  was  no  evidence,  except  such  as  may  be  inferred  from  the 
evidence  herein  stated,  that  any  of  the  owners  of  the  paper  title 
of  the  land,  except  Hodges,  had  ever  given  any  license  or  permission, 
or  had  any  knowledge  of  any  license  or  permission,  to  John  Hanlon 
or  Kate  Hanlon,  or  the  heirs  of  John  Hanlon,  to  occupy  the  prem- 
ises. 

The  demandant  asked  the  judge  to  instruct  the  jury  as  follows: 
1.  If  the  owner  of  the  land  verbally  gave  the  land  to  John  Han- 
lon, and  thereupon  Hanlon  entered  on  the  premises  and  occupied 
them  continuously  till  his  death,  claiming  to  own  them,  and  Avas  not 
interfered  with  in  said  occupation,  and  immediately  upon  his  death 
his  widow  continued  to  occupy  the  same  continuously  in  the  same 
way,  and  the  whole  period  of  such  continuous  occuj)ation  amounted 
to  twenty  years,  the  jury  would  be  authorized  to  find  that  the  title 
was  in  Mrs.  Hanlon,  or  in  her  and  the  heirs  at  law  of  said  John  Han- 
lon, and  that  the  title  passed  to  the  demandant  by  virtue  of  deeds 
which  were  annexed  as  exhibits  A  and  B.  2.  If  the  occupation  of 
Mrs.  Hanlon  has  been  sufficient  to  give  a  title,  under  the  rules  of 


46  BOND  V.  o'gaua  [chap.  II 

law  given  you,  but  for  some  license  or  permission  which  might  qual- 
ify such  ocupation,  then  the  said  license  or  permission  must  appear 
to  be  a  license  or  permission  granted  by  the  owner  before  or  at  the 
time  the  occupation  is  going  on,  or  in  force  during  the  time  of  such 
occupation.  3.  Any  license  or  permission  given  by  Hodges  during 
his  ownership  is,  in  itself,  of  no  legal  importance,  as  affecting 
occupancy  by  Mrs.  Hanlon  subsequent  to  the  date  when  he  parted 
with  his  title,  and  it  could  have  no  force  in  this  case,  unless  there 
is  evidence  that  the  grantees  of  Hodges,  while  owners,  renewed  or 
adopted,  or  in  some  way  intentionally  continued  or  revived,  sucli 
license  or  permission.  4.  If  the  occupation  of  Mrs.  Hanlon  of 
_  the  premises  in  question  for  twenty  years  was  such  that  the  real 
owner  of  the  premises  could  have  sued  her  for  trespass  for  such 
occupation,  then  said  occupation  was  adverse  within  the  meaning 
of  the  law.  5.  On  the  evidence  in  the  present  case  the  occupation  by 
Mrs.  Hanlon  of  the  premises  in  question,  cultivating  the  same,  cut- 
ting the  hay  and  grass  on  the  same,  and  pasturing  her  cow  thereon, 
was  such  occupation  as  would  support  an  action  of  trespass  on  the 
part  of  the  OAvner  of  the  estate,  in  the  absence  of  any  license  or 
permission  given  by  the  person  who  OAvned  the  premises  at  the  time 
of  said  occupation. 

The  judge  refused  to  give  the  instructions  in  the  form  requested, 
but  after  general  instructions  as  to  adverse  possession  instructed 
the  jury,  in  substance,  that  if  Hanlon's  occupancy  was  not  by 
gift,  but  by  permission  only,  he  did  not  acquire  any  right  against 
the  owner  of  the  land;  that  the  right  of  Hodges  to  continue  that 
permission  'ceased,  as  matter  of  law,  with  the  deed  given  by  him 
on  October  19,  1866;  that  if  Hanlon,  wife  or  children,  continued  to 
7 occupy  on  the  belief  that  the  permission  continued,  no  right  could 
be  acquired,  but  that  if  the  occupancy  Avas  on  the  belief  that  the  land 
was  theirs,  and  continued  twenty  years  uninterruptedly,  being  ad- 
verse and  open,  a  title  would  be  acquired.  He  further  instructed 
them  that,  if  the  first  occupation  by  the  father  Avas  adverse  and  the 
children  continued  their  occupation,  they  could  add  the  time  of  their 
occupation,  if  they  claimed  title,  to  that  of  their  father,  but,  if  not, 
then,  if  the  mother's  belief  Avas  that  Hodges  had  giA^en  the  land  to  her 
husband,  her  uninterrupted  occupation  for  tAventy  years,  if  adverse 
and  open,  would  giA^e  a  good  title;  and  that  if  the  occupation  by 
Mrs.  Hanlon  or  the  heirs  was  exclusive,  except  as  to  the  right  re- 
served to  the  Leicester  Reservoir  Company,  it  was  sufficient,  because 
that  right  was  reserved  by  the  deed  and  exercised  thereunder. 

The  demandant  excepted  to  the  refusal  to  giA'e  the  instructions 
prayed  for,  and  to  the  actual  instructions  given  so  far  as  they  dif- 
fered from  the  instructions  prayed  for. 

The  jury  returned  a  verdict  for  the  tenant;  and  the  demandant 
alleged  exceptions. 

Holmes,  C.  J.     This  is  a  Avrit  of  entrj-.     The  demandant  claims 


SECT.    l]  BOND    V.    o'gARA  47 

title  under  a  deed  from  the  widow  and  lieirs  of  one  Joliii  Haiiloii, 
setting  up  a  title  in  tlieni  by  tiie  running  of  the  statute  of  limitations. 
There  was  evidence  that  the  holding  of  John  Hanlon  and  Iiis  widow 
and  heirs  had  been  under  a  claim  of  right  adverse  to  all  the  world. 
There  was  also  evidence  that  their  occupancy  had  been  under  a 
license  from  one  Hodges,  who  ow^ned  the  land  after  October,  1865, 
and  conveyed  it  in  October,  1866.  The  question  raised  by  the  de- 
mandant's bill  of  exceptions  is  whether  the  fact  that  the  license  was 
ended  in  1866  by  the  conveyance  of  Hodges  necessarily  made  the 
occupation  by  the  Hanlons  adverse,  if  they  supposed  the  license 
still  to  be  in  operation  and  purported  to  occupy  under  it,  but  were 
in  such  relations  to  the  land  that  they  would  have  been  liable  to 
an  action  of  trespass,  or,  better  to  test  the  matter,  to  a  writ  of  entry 
at  the  election  of  the  true  owner. 

The  answer  is  plain.  "  If  a  man  enter  into  possession,  under  a 
supposition  of  a  lawful  limited  right,  as  under  a  lease,  which  turns 
out  to  be  void,  ...  if  he  be  a  disseisor  at  all,  it  is  only  at  the  elec- 
tion of  the  disseisee.  ...  If  the  party  claim  only  a  limited  estate, 
and  not  a  fee,  the  law  will  not,  contrary  to  his  intentions,  enlarge 
it  to  a  fee."  Ricard  v.  WiUiams,  7  Wheat.  59,  107,  108;  Blunden  v. 
Baugh.  Cro.  Car.  302,  303.     Stearns,  Heal  Actions,   (2d  ed.)   6,  17. 

It  is  true,  of  course,  that  a  man's  belief  may  be  immaterial  as 
such.  Probably,  although  the  courts  have  not  been  unanimous 
upon  the  point,  he  will  not  be  the  less  a  disseisor  or  be  prevented 
from  acquiring  a  title  by  lapse  of  time  because  his  occupation  of 
a  strip  of  land  is  under  the  belief  that  it  is  embraced  in  his  deed. 
His  claim  is  not  limited  by  his  belief.  Or,  to  put  it  in  another  way, 
the  direction  of  the  claim  to  an  object  identified  by  the  senses  as 
the  thing  claimed  overrides  the  inconsistent  attempt  to  direct  it 
also  in  conformity  to  the  deed,  just  as  a  similar  identification  Avhen 
a  pistol  shot  is  fired  or  a  conveyance  is  made  overrides  the  incon- 
sistent belief  that  the  person  aimed  at  or  the  grantee  is  some  one  else. 
naflwiray  v.  Evans,  108  Mass.  267;  Bed-man  v.  Davidson,  162  Mass. 
347,  350.'  See  Sedgwick  &  Wait,  Trial  of  Title  to  Land,  (2d  ed.) 
§  757.  So,  knowledge  that  a  man's  title  is  bad  will  not  prevent  his 
getting  a  good  one  in  twenty  years.  Warren  v.  Bowdran,  156  Mass. 
280,  282. 

In  the  cases  supposed  the  mistaken  belief  does  not  interfere  with 
the  claim  of  a  fee.  But  when  the  belief  carries  with  it  a  corre- 
sponding limitation  of  claim  the  statute  cannot  run,  because  there 
is  no  disseisin  except  the  fictitious  one  which  the  owner  may  be 
entitled  to  force  upon  the  occupant  for  the  sake  of  a  remedy.  Hohan 
V.  CahU,  102  Mich.  206,  213.  Liability  to  a  writ  of  entry  and  dis- 
seisin are  not  convertible  terms  in  any  other  sense.  It  is  elementary 
law  that  adverse  possession  which  will  ripen  into  a  title  must  be 
under  a  claim  of  right,  (Harvey  v.  Tyler,  2  Wall.  328,  349,)  or, 
as  it  has  been  thought  more  accurate  to  say,   "  with  an  intention 


48  DALTON    V.    FITZGERALD  [CHAP.    II 

to  appropriate  and  hold  the  same  as  owner,  and  to  the  exclusion, 
rightfully  or  wrongfully,  of  every  one  else."^  Sedgwick  &  Wait, 
Trial  of  Title  to  Land,  (2d  ed.)  §  576.  "As  Co.  Lit.  153  h  defines, 
'a  disseisin  is  when  one  enters,  intending  to  usurp  the  possession, 
and  to  oust  another  of  his  freehold  '  ;  and  therefore  qucBrendum  est 
a  judice,  quo  animo  hoc  fecerit,  why  he  entered  and  intruded." 
Blunden  v.  Baugk,  Cro.  Car.  302,  303. 

The  other  matters  apparent  on  the  bill  of  exceptions  were  suffi- 
ciently dealt  with  by  the  judge.  Exceptions  overruled.^ 


DALTON  V.  FITZGERALD 
[1897]  1  Ch.  440.    1897. 

This  ^  was  an  action  to  establish  the  plaintiff's  title  to  certain 
lands.    In  1828  John  Dalton,  owner  of  these  lands  in  the  township 

1  True  owner  allowed  to  maintain  ejectment  or  equivalent  action  al- 
though  defendant   was   in   possession   for   the   statutory    period. 

Collins  V.  Johnson,  57  Ala.  304;  Newton  v.  L.  N.  Rd.  Co.,  110  Ala.  474; 
Pulaski  County  v.  State,  42  Ark.  118;  McCracken  v.  San  Francisco,  16  Cal. 
591,  636  (semble);  Hanchett  v.  King,  4  Day  (Conn.)  360;  Gay  v.  Mitchell, 
35  Ga.  139;  Russell  v.  Davis,  38  Conn.  562  (semble;)  Wright  v.  Keithler, 
7  Iowa  92;  Donahue  v.  Lannan,  70  Iowa  73;  Bell  v.  Fry,  5  Dana  (Ky.)  341; 
Worcester  v.  Lord,  56  Me.  265;  Wayzata  v.  Great  Northern  Ry.  Co.,  50 
Minn.  438;  Johnson  v.  Prewitt,  32  Mo.  553;  Burke  v.  Adams,  80  Mo.  504; 
Colvin  V.  Republican  Land  Assn.,  23  Neb.  75;  Doherty  v.  Matsell,  119 
N.  Y.  646;  Flanagan  v.  Boggess,  46  Tex.  330;  Nowlin  v.  Reynolds,  25  Gratt. 
(Va).  137. 

2  On  the  extent  of  the  title  that  must  be  claimed,  see  Ricard  v.  Williams, 
7  Wheat.  (U.  S.)  59,  107,  108;  La  Crosse  v.  Cameron,  80  F.  R.  264,  272; 
Harden  v.  Watson,  104  Ark.  641;  148  S.  W.  (Ark.)  506;  lona  v.  Uu,  16 
Hawaii  432;  Warren  County  v.  Lamkin,  93  Miss.  123;  De  Bemardi  v. 
McElroy,  110  Mo.  650,  659;  Bedell  v.  Shaw,  59  N.  Y.  46;  King  v.  Toumshend, 
141  N.  Y.  358.  364;  Long  Island  R.  R.  Co.  v.  Mulry,  212  N.  Y.  108;  McLain 
V.  Bird,  120  N.  Y.  Supp.  1032,  1034;  Tichborne  v.  Weir,  67  L.  T.  n.  s.  735; 
O'Conner  v.  Foley,  [19051  1  I.  R.  1. 

In  Maas  v.  Burdetzke,  93  Minn.  295.  it  was  held,  that  if  A  acquires 
title  from  the  United  States  and  thereafter  B,  without  knowledge  of  such 
fact,  enters  and  occupies  the  land  with  recognition  of  the  supposed  title 
of  the  United  States,  and  with  intention  to  acquire  such  title,  and  continues 
in  such  occupation  for  the  statutory  period,  he  acquires  the  title  as  against 
A.  Iowa  R.  R.  Land  Co.  v.  Blumer,  206,  U.  S.  482;  Boe  v.  Arnold,  54  Oreg. 
52  (overruling  Altschul  v.  O'Neill,  35  Oreg  202;  and  Altschul  v.  Clark.  39 
Oreg.  315) ;  Spath  v.  iSa?e.s,  70  Oreg.  269  accord.  And  see  Hayes  v.  Martin, 
45  Cal.  559;  McManus  v.  0' Sullivan,  48  Cal.  7;  Portis  v.  Hill,  14  Tex.  69; 
Smith  V.  Jones,  103  Tex.  632. 

Contra.  Hunnewell  v.  Burchctt,  152  Mo.  611,  (cf.  Houghton  v.  Pierce, 
203  Mo.  723;  Mather  v.  Walsh,  107  Mo.  121);  M cN aught-'C ollins  Imp.  Co. 
V.  May,  52  Wash.  632.  And  see  Doe  v.  Beck,  108  Ala.  71;  Skayisi  v.  Norack, 
84  Wash.  39. 

■^  The  following  statement  of  facts  is  substituted  for  that  in  the  report. 
Ed. 


SECT.    l]  DALTOX    V.    FITZGERALD  49 

of  Bulk,  devised  other  lands  to  trustees  upon  trust  to  settle  in  a  cer- 
tain manner.  John  Dalton  died  in  1837  leaving  two  daughters  as 
co-heiresses  to  whom  the  Bulk  estate  descended.  By  deed  of  July  30, 
1842,  the  trustees  settled  the  property  devised  to  them  upon  trust  in 
accordance  with  the  will,  but  through  error  included  the  Bulk  estate. 
The  testator's  daughters  were  parties  to  the  deed  and  executed  it,  but 
neither  purported  to  grant  the  property  therein  and  the  married 
daughter  did  not  acknowledge  the  instrument.  The  limitations  were, 
in  part,  to  the  daughters  for  life,  remainder  to  James  Fitzgerald  for 
life,  remainder  to  Gerald  Fitzgerald  for  life,  remainder  to  the  plain- 
tiff for  life,  remainders  over. 

The  daughters  and  James  died,  and  thereupon  in  1867  Gerald 
Fitzgerald  entered  into  possession  of  the  estates  comprised  in  the 
settlement.  On  succeeding  to  the  estates  he  passed  a  succession  duty 
account,  which  was  rendered  as  an  account  on  the  succssion  of  real 
estate  under  the  will  of  John  Dalton  and  a  settlement  in  pursuance 
thereof,  and  included  the  lands  in  Bulk.  In  1868  by  an  indenture, 
reciting  the  settlement  of  1842,  he  charged  the  estates  including  those 
in  Bulk  with  a  jointure  for  his  widow  and  portions  for  her  younger 
children  in  exercise  of  powers  conferred  by  the  instruments  of  1842, 
In  January,  1894,  however,  he  procured  himself  to  be  registered 
in  the  land  registry  as  proprietor  of  the  fee  simple  of  the  lands  in 
Bulk,  and  devised  them  to  the  defendants.  He  died  in  February, 
1894,  without  issue.  The  defendants  then  entered,  and  the  present 
action  was  brought  to  establish  the  title  of  the  plaintiff  as  tenant  for 
life  under  the  settlement. 

Stirling  J.  For  the  purpose  of  the  present  judgment  I  assume 
in  favour  of  the  defendants  that  on  the  true  construction  of  the  will 
and  codicils  of  John  Dalton,  the  father,  the  lands  and  hereditaments 
in  Bulk,  to  which  I  shall  hereafter  refer  as  the  land  in  Bulk,  which 
are  now  claimed  by  the  defendants,  did  not  pass  by  his  will  and  codi- 
cils, but  on  the  death  of  the  testator  devolved  to  his  co-heiresses-at- 
law.  By  the  deed  of  July  30,  1842,  to  which  those  co-heiresses  w^ere 
parties,  the  trustees  of  the  will  with  their  privity  purported  to  bar- 
gain, sell,  or  release  these  lands  in  Bulk  by  a  sufficient  description 
to  legal  uses  in  favour  of  the  same  persons  as  would  have  been  en- 
titled to  have  legal  uses  created  in  their  favour  if  these  lands  in  Bulk 
had  passed  by  the  will  and  codicils  of  John  Dalton.  Xow  of  this 
deed  Sir  Gerald  Fitzgerald  took  the  benefit  in  respect  of  these  very 
lands  in  Bulk.  This  appears  to  me  to  be  established,  first,  by  the 
succession  duty  account  passed  by  him,  and,  secondly,  by  the  jointure 
deed  executed  by  him,  and  dated  September  9,  1868.  [His  Lord- 
ship referred  to  those  documents,  and  continued :  —  ] 

Upon  this  evidence  I  come  to  the  conclusion  of  fact  that  Sir  Gerald 
Fitzgerald  entered  into  possession  of  the  lands  in  Bulk  under  the  set- 
tlement of  1842.  The  question  is. whether,  having  so  done,  he  is  not 
estopped  from  denying  the  validity  of  that  deed. 


50  DALTON    ?'.    FITZGERALD  [CHAP.    II 

Siinibtr  questions  liavc  rcpcafcdly  arisen  iindci-  wills.  Those  cases 
{ipi)ear  (o  divide  themselves  iiito^two  classes.  The  first  is,  where  a 
testator  having  either  no  title  or  an  imperfect  title  to  land  devises  it 
by  specific  description  to  or  upon  trust  for  a  person  for  life  with  re- 
mainders over.  Examples  of  this  class  are  to  be  found  in  Hawhshee 
V.  Hmvhshee,  11  Hare,  230,  and  Board  v.  Board,  L.  E.  9  Q.  B.  48. 
I  refer  particularly  to  the  latter  case,  as  tbe  judgment  is  more 
elaborate  and  expresses  the  grounds  of  decision  more  fully  than  in 
Hawhshee  v.  Hawhshee,  11  Hare,  230.  In  Board  v.  Board,  L.  E.  9 
Q.  B.  48  the  testator  was  simply  tenant  by  the  curtesy  of  certain 
premises.  He  devised  them  to  trustees  for  his  daughter  Eebecca  for 
life,  with  remainder  to  his  grandson  William.  Then,  upon  the  testa- 
tor's death,  Eebecca  entered  into  possession  of  the  property,  and  paid 
the  annuities  charged  upon  the  land,  and  was  suffered  by  the  heir-at- 
law  to  remain  in  possession  undisturbed  for  more  than  twenty  years. 
Then  "William  conveyed  his  remainder  to  the  plaintiff.  Eebecca, 
after  she  had  been  in  possession  more  than  twenty  years,  conveyed 
the  premises  in  fee  to  the  defendant,  who,  upon  his  [her]  death,  took 
possession.  The  plaintiff,  the  assignee  of  William,  the  remainder- 
man, having  brought  ejectment,  it  was  held  that,  Eebecca  having 
entered  under  the  will,  the  defendant  claiming  through  her  was 
estopped  as  against  all  those  in  remainder  from  disputing  the  validity 
of  the  will,  and  that  the  plaintiff  was  entitled  to  recover.  In  giving 
judgment  Blackburn  J.  says,  L.  E.  9.  Q.  B.  53 :  ''  The  case  is  like 
that  of  a  tenant  coming  in  under  a  landlord :  he  is  estopped  from 
denying  his  landlord's  title.  As  to  the  point  that  Eobert,  being  only 
a  tenant  by  the  curtesy,  had  nothing  to  devise,  it  may  be  said  that  in 
many  instances  the  landlord  has  only  an  equitable  title,  and  yet  the 
tenant  is  estopped  from  disputing  such  title.  I  think  if  the  law  were 
otherwise  the  consequences  would  be  disastrous,  for  how  unjust  it 
would  be  if  a  person  who  comes  in  under  a  will  as  tenant  for  life,  and 
continues  in  possession  until  twenty  years  have  elapsed,  could  say 
there  was  a  latent  defect  in  the  title  of  his  predecessor,  and  the  estate 
devised  really  belonged  to  the  heir-at-law,  and  his  title  being  barred, 
he,  the  tenant  for  life,  is  entitled  to  the  property  in  fee  simple.  It  is 
_(:  contrary  to  the  law  of  estoppel  that  he  who  has  obtained  possession 
under  and  in  furtherance  of  the  title  of  a  devisor  should,  say  that 
such  title  is  defective.  My  brother  Martin,  in  Anstee  v.  Nehns,  1  H. 
&  K  232;  26  L.  J.  (Ex.)  8  says  that  the  Statute  of  Limitations  can 
never  be  so  construed  that  a  person  claiming  a  life  estate  under  a 
will  shall  enter  and  then  say  that  such  possession  was  unlawful,  so 
as  to  give  his  heir  a  right  against  a  remainderman.  That  seems 
directly  in  point.  It  is  good  sense  and  good  laAV.  All  we  have  to 
decide  here  is  that  Eebecca,  having  entered  under  the  will,  William, 
the  remainderman  under  the  same  will,  has  a  right  to  say  that  she 
and  all  those  claiming  through  he;*  are  estopped  from  denying  that 
the  will  was  valid."     Mellor  J.  says :    ''A  person  cannot  say  that  a 


SECT.    l]  DALTON    V.    FITZCIEKALD  51 

will  is  valid  to  enable  liini  to  take  a  benefit  under  it,  but  invalid  so 
far  as  regards  the  interests  of  those  in  remainder  who  claim  under 
the  same  will."  Quain  J.  says :  "  I  decide  this  case  on  the  simple 
point  that  a  person  who  takes  under  a  will,  and  acts  on  the  will  in 
paying  the  legacies  and  annuities  given  under  it,  cannot  afterwards 
turn  around  and  place  himself  in  a  different  position,  and  maintain 
that  he  is  in  a  position  adversely  to  those  who  take  under  the  same 
will." 

No  doubt  has  ever  been  thrown  upon  that  class  of  cases;  but  there 
is  a  second  class  as  to  which  there  is  a  conflict  of  opinion,  namely, 
where  a  testator,  having  a  good  title  to  property,  has  not  effectually 
devised  it,  and  the  tenant  for  life  of  the  property  effectually  devised 
by  the  will  has  entered,  just  as  if  it  had  been  included  in  a  valid  de- 
vise, and  acquired  by  possession  a  title  against  the  heir.  The  case 
which  has  most  frequently  happened  is  under  the  law  as  it  stood 
prior  to  the  Wills  Act,  when  a  testator  was  incom.petent  to  devise 
land  acquired  subsequently  to  his  will.  Of  this  class  of  cases  Paine 
V.  Jones,  L.  R.  18  Eq.  320,  is  a  leading  example.  There  a  testator 
by  his  will,  dated  in  1824,  devised  all  his  real  and  personal  estate,  and 
also  all  other  his  estate  and  effects  of  which  he  might  be  possessed 
at  the  time  of  his  decease,  to  his  wife  and  another  trustee,  in  trust  to 
pay  the  rents  to  his  wife  for  life,  with  remainders  over.  The  testator 
purchased  a  freehold  estate  after  the  date  of  his  will.  On  his  death 
his  widow  (the  other  trustee  having  disclaimed)  became  sole  trustee 
of  his  will,  and  entered  into  possession  of  the  after-acquired  property 
as  well  as  the  devised  estate,  believing  that  all  the  propert}^  passed  by 
the  will.  She  continued  in  possession  for  more  than  twenty  years, 
and  then,  being  informed  that  she  had  acquired  a  title  by  adA^erse 
possession,  she  sold  the  estate  to  a  purchaser  for  value.  It  was  held, 
upon  a  bill  filed  by  the  remainderman  un(h'r  the  will  to  oust  the  pur- 
chaser, that  the  tenant  for  life  had  acquired  a  good  title  by  adverse 
possession  against  the  remainderman,  and  tlie  hill  was  dismissed. 
Malins,  V.-C,  who  decided  the  case,  goes  through  all  the  prior  cases, 
including  Board  v.  Board,  L.  K.  9  Q.  B.  4S,  and  llairkshcc  v.  Tlaw'ks- 
bee,  11  Hare,  230,  and  he  expresses  his  coiicurrcnce  with  those  cases, 
but  he  distinguishes  them.  Referring  to  thcni,  he  says,  L.  R.  18  Eq. 
328 :  "  All  these  cases  proceed  on  the  principle  that  if  parties  have 
no  other  title  than  the  will,  they  are  estopped  from  denying  the  title 
of  persons  under  the  same  will.  Under  this  will  the  widow  had  no 
title  whatever.  The  defendants  had  a  title  under  the  will."  That 
is  apparently  a  misprint  for  "  widow."  The  Vice-Chancellor  then 
goes  on :  "  I  think  this  is  a  distinct  case  of  adverse  possession,  and 
the  defendants  claiming  under  the  widow  have  acquired  a  title  as 
against  those  persons  whose  title  is  oidy  under  the  will."  In  a  sub- 
sequent case  of  In  re  Stringe/s  Estate,  6  Ch.  D.  1,  Sir  George  Jessel 
held  that  if  a  testator  nuuh^  an  invalid  devise  of  ])ro])erty,  to  which 
he  himself  had  a  good  title,  to  A.  for  life  with  remainders  over,  and 


52  DALTON    V.    FITZGERALD  [CHAP.   II 

A.  acquired  a  good  title  by  possession  against  the  heir-at-law,  A.  was 
not  estopped  from  saying,  as  against  the  remainderman,  that  the  de- 
vise was  invalid.  Upon  appeal  the  devise  which  the  late  Master  of 
the  Kolls  had  held  to  be  invalid  was  held  to  be  valid,  and  no  opinion 
was  expressed  on  the  decision  of  the  Master  of  the  Rolls  on  the  point 
in  question ;  but  it  appears  to  me  that  when  his  judgment  is  examined 
the  Master  of  the  Rolls  did  not  intend  to  throw  any  doubt  upon  the 
class  of  cases  of  which  Board  v.  Board,  L.  R.  9  Q.  B.  48,  is  an  ex- 
ample. At  page  10  of  the  report  he  says :  "  A  man  is  in  possession 
of  land  with  a  defective  title,  but  he  has  possession.  In  fact,  under 
the  old  law,  he  could  not  have  devised  without,  except  in  the  case  of 
certain  reversions.  He  devises  to  a  man  for  life  with  remainder  over. 
The  devisee,  having  no  title  except  under  the  will,  enters  under  the 
will.  It  has  been  held  that  he  cannot  deny  that  the  testator  had  a 
right  to  devise  in  the  way  he  has  devised;  that  is,  that  the  testator 
had  a  sufficient  title  to  support  the  devise  as  far  as  the  devisee  is  con- 
cerned —  not  to  make  the  devises  valid  which  were  invalid,  because 
the  devises  were  invalid  per  se  if  the  testator  had  insufficient  title. 
Therefore  the  whole  of  the  estoppel  is  this :  you  have  entered  under 
the  will  of  a  man  who  had  possession  as  far  as  you  are  concerned : 
possession  is  the  fee:  you  cannot  say,  you  having  no  title,  that  he 
had  less  than  the  fee  which  he  purported  to  devise.  You  are  estopped 
from  denying  his  title  to  dispose  of  that  fee,  though  you  may  have 
found  out  afterwards  that  he  was  only  tenant  for  years,  or  tenant 
from  year  to  year,  or  tenant  for  life,  or  anything  else.  You  have 
got  possession  under  that  will,  and  possession  in  law,  as  far  as  you 
are  concerned,  of  the  fee.  All  that  I  understand.  That  is  a  little 
extension  of  the  doctrine  of  estoppel  by  contract,  but  it  follows  on 
the  same  principle."  On  the  other  hand,  in  Anstee  v.  Nelms,  1  H. 
&  ]^.  230,  232,  Pollock  C.  B.  and  Martin  B.  appear  to  have  been  of 
opinion  that  the  principle  laid  downi  in  Board  v.  Board,  L.  R.  9 
Q.  B.  48,  was  applicable  to  a  case  similar  to  that  of  Paine  v.  Jones, 
L.  R.  18  Eq.  320,  and  in  the  case  of  Kenraghan  v.  M'Nally,  12  Ir. 
Ch.  Rep.  89,  the  Lord  Chancellor  and  the  Court  of  Appeal  in  Ireland 
appear  to  have  given  a  decision  which  was  not  in  accordance  with 
that  of  Malins  Y.-C. 

It  is  contended  that  the  present  case  is  governed  by  the  decisions 
in  Paine  v.  Jones,  L.  R.  18  Eq.  320,  and  In  re  Stringer's  Estate,  6 
Ch.  D.  1.  In  my  judgment  that  is  not  so.  The  question  is  not 
whether  Sir  Gerald  Eitzgerald  is  estopped  from  denying  that  John 
Dalton  devised  the  lands  in  Bulk,  but  whether  he  is  estopped  from 
denying  the  validity  of  the  settlement  of  July  30,  1842.  It  appears 
to  me  that  the  reasoning  in  Board  v.  Board,  L,  R.  9  Q.  B.  48,  applies 
with  as  much  force  to  a  deed  as  to  a  will,  and  I  see  no  reason  why, 
if  a  grantor  who  has  no  title  or  an  imperfect  title  to  a  particular 
piece  of  land  purports  to  grant  it  by  deed  to  A.  for  life  with  re- 
mainders over,  and  A.  enters  under  the  deed  and  acquires  a  good  title 


SECT.    l]  DOE   d.   GRAVES    V.    WELLS  53 

against  the  true  owner,  he  shouhl  not  be  held  to  be  estopped  as 
against  those  in  remainder  from  disputing  the  validity  of  the  deed. 
It  is  to  be  observed  that  in  this  case  the  true  owners  were  parties  to 
and  executed  the  deed,  and  though  they  did  not  grant,  or  purport  to 
grant,  the  lands  in  Bulk,  still  they,  by  executing  the  deed,  assented 
to  the  act  of  the  trustees,  and  shewed  that  they  treated  the  deed  as  a 
proper  settlement  in  pursuance  of  the  directions  in  the  testator's 
will.  It  was  said,  however,  that  there  could  be  no  estoppel,  as  the 
truth  appeared  on  the  face  of  the  settlement  of  July  30,  1842.  But, 
in  my  judgment,  it  does  not  appear  on  the  face  of  that  deed  either 
that  the  manor  of  Bulk  was  only  a  reputed  manor,  so  that  the  lands 
in  Bulk  belonging  to  the  testator  did  not  pass  under  a  devise  of  that 
manor,  or  that  upon  the  true  construction  of  the  testator's  will  there 
was  an  intestacy  as  regards  the  lands  in  Bulk.  It  is  also  urged  that 
the  settlement  of  July  30,  1842,  was  only  machinery  for  giving  effect 
to  the  dispositions  made  by  the  testator,  and  gave  no  further  or  better 
title  than  the  will  itself.  This  seems  to  me  to  give  too  little  weight 
to  the  deed,  which  confers  a  legal  title  on  the  beneficiaries  under  the 
will,  and  defines  many  rights  conferred  upon  them  by  the  will  and 
codicils  (as,  for  example,  that  of  creating  jointures  and  charging 
portions  for  younger  children),  of  which  the  beneficiaries  have 
availed  themselves.  The  conclusion,  therefore,  to  which  I  come  is 
that  the  doctrine  of  estoppel  applies  to  this  case,  and  that  the  defend- 
ants are  precluded  from  denying  that  the  deed  of  1842  was  an 
effectual  settlement,  and  consequently  that  the  plaintiff  is  entitled  to 
judgment.^ 


DOE  d.  GRAVES  v.  WELLS 

10  A.  &  E.  427.     1839. 

Ejectment  [against  Wells  and  Trowbridge]  for  lands  in  Wilt- 
shire. The  several  demises  were  alleged  in  the  declaration  to  have 
been  made  on  l7th  October,  1836,  habendum  for  seven  years,  from 
15th  October,  1836.  After  pleas  pleaded,  Wells  compromised  with 
the  lessors  of  the  plaintiff,  but  Trowbridge  continued  to  defend.  On 
the  trial  before  Patteson,  J.,  at  the  Wiltshire  Summer  Assizes,  1837, 
it  was  proved,  on  the  part  of  the  plaintiff,  that  (iraves,  the  lessor  of 

1  Affirmed.  [18971  2  Ch.  86.  Sec  Reynolds  v.  Trawick,  78  So.  (Ala.)  827; 
Wright  v.  Slice,  173  111.  571;  Roberts  v.  Coi,  259  111.  232;  Hanson  v.  Johnson, 
62  Md.  25;  Hayncs  v.  Boardman,  119  Mass.  414;  Charles  v.  Fickeiis.  214  Mo. 
212;  Brittain  v.  Daniels,  94  N.  C.  781;  Anderson  v.  Rhodns,  12  Rich.  Eq. 
(S.  C.)  104,  109;  Stevens  v.  Bomar.  9  Humph.  (Tenn.)  546;  Broivn  v.  Brovm, 
14  Lea  (Tenn.)  253;  Austin  v.  Rutland  R.  R.  Co.,  45  Vt.  215.  236;  Molony  v. 
Molony,  [1894]  2  I.  I.  R.  1,  6;  Estate  of  Tennent,  [19131  1  I.  R.  280;  Smith 
V.  Smith,  5  Ont.  Rep.  690;  Connors  v.  Myatl,  24  Dom.  L.  Rep.  537;  In  re 
Anderson,  [1905]  2  Ch.  70;  English  cases  cited  in  Dalton  v.  Fitzgerald;  Pro- 
fessor H  W.  Ballantine,  28  Yale  L.  J.  224-235. 


54  DOE    d.    GRAVES    ?'.    WELLS  [CHAP.    II 

the  plaiiitifT,  was  entitled  to  the  reversion  upon  a  lease  under  which 
Trowhridge  held,  whi(di  lease  was  for  ninety-nine  years,  to  end  in 
1888,  determinable  on  certain  lives  not  yet  expired,  at  a  rent.  It 
was  further  proved  that,  on  17th  October,  1836,  Graves's  agent,  in 
a  conversation  with  Trowbridge,  who  was  then  in  possession,  de- 
manded the  rent  of  him,  but  Trowbridge  then  refused  to  pay  it, 
and  asserted  that  the  fee  was  in  himself.  The  counsel  for  the  plain- 
tiff contended  that  this  was  a  disclaimer,  working  a  forfeiture  of 
Trowbridge's  term;  the  defendant's  counsel  disputed  this,  and  con- 
tended further  that,  even  supposing  this  to  be  a  forfeiture,  the  demise 
was  laid  too  eavlj,  being  on  the  very  day  of  the  supposed  forfeiture. 
The  learned  judge  directed  the  jury  to  find  for  the  plaintiff,  if  they 
were  of  opinion  that  the  words  used  by  Trowbridge  were  not  mere 
idle  language,  but  a  serious  claim  of  the  fee.  The  jury  having  found 
for  the  plaintiff,  the  learned  judge  reserved  leave  to  the  defendant's 
counsel  to  move  to  enter  a  verdict  for  the  defendant.  In  Michael- 
mas Term,  1837,  Crowder  obtained  a  rule  accordingly. 

Lord  Denman,  C.  J.  I  think  Doe  dcm.  Ellerhroch  v.  FJynn,  1  Or. 
M,  k  R.  137;  s.  e.  4  Tyrwh.  619,  is  distinguishable  from  the  present 
case.  There  it  was  thought  that  the  tenant  had  betrayed  his  land- 
lord's interest  by  an  act  that  might  place  him  in  a  worse  condition  : 
if  the  case  went  farther  than  that,  I  should  not  think  it  maintainable. 
The  other  instances  are  cases  either  of  disclaimer  upon  record,  which 
admit  of  no  doubt  as  to  the  nature  of  what  is  done,  or  of  leases  from 
year  to  year,  in  speaking  of  which  the  nature  of  the  tenancy  has 
been  sometimes  lost  sight  of,  and  the  words  "  forfeiture  "  and  "  dis- 
claimer "  have  been  improperly  applied.  It  may  be  fairly  said, 
when  a  landlord  brings  an  action  to  recover  the  possession  from  a 
defendant  who  has  been  his  tenant  from  year  to  year,  that  evidence 
of  a  disclaimer  of  the  landlord's  title  by  the  tenant  is  evidence  of  the 
determination  of  th-e  will  of  both  parties,  by  which  the  duration  of 
the  tenancy,  from  its  particular  nature,  was  limited.  But  no  case, 
I  think,  goes  so  far  as  the  present  and  I  feel  the  danger  of  allowing 
an  interest  in  law  to  be  put  an  end  to  by  mere  words. 

LiTTLEDALE,  J.  We  should  uot,  indeed,  be  justified  in  putting  an 
end  to  a  state  of  law  on  account  of  its  danger;  for  we  must  give 
parties  whatever  the  law  entitles  them  to :  but  here  the  law  leads  to 
no  such  consequence.  The  case  is  not  like  that  of  a  tenancy  from  year 
to  year,  which  last  only  as  long  as  the  parties  please,  and  where  what 
has  been  called  a  disclaimer  is  evidence  of  the  cessation  of  the  will. 
Here  property  is  claimed  on  the  ground  of  forfeiture.  !N^ow,  assume 
the  jury  to  have  been  right  in  their  verdict :  still  the  facts  do  not  go 
far  enough  for  a  forfeiture.  In  Oomyns's  Digest,  tit.  Forfeiture, 
and  in  Viner's  Abridgment,  tit.  Estate  (see  10  Vin.  Abr.  370,  sqq. 
Forfeiture  (0.  b),  &c.),  a  very  great  number  of  instances  of  for- 
feiture are  given :  but  there  is  no  allusion  to  any  case  of  this  kind ; 
the  instances  are  either  of  matters  of  record,  or  of  acts  in  pais  quite 


SECT.    l]  DOE    d.    GRAVES    V.    WELLS  55 

different  from  what  is  here  insisted  upon.  In  an  Anonymous  Case 
in  Godbolt,  105,  pi.  124,  the  tenant  claimed  the  fee  on  the  record,  in 
an  action  of  debt;  and  yet  it  was  held  to  be  no  forfeiture.  Doe  dem. 
Ellerhrocl'  v.  Flynn  has  been  satisfactorily  distinguished  by  My 
Lord. 

Pattesox,  J.  Xo  case  has  been  cited  where  a  lease  for  a  definite 
term  has  been  forfeited  by  mere  words.  We  know  that  mere  Mords 
cannot  work  a  disseisin,  although  some  acts  have  been  held  to  work  a 
disseisin  at  the  election  of  the  party  disseised,  which,  as  against  him, 
Avould  not  work  a  disseisin.  An  attornment  again  is  an  act.  Here 
there  is  no  act;  and,  if  we  held  that  there  was  a  forfeiture,  we  should 
be  going  much  beyond  any  previous  decision.  It  is  sometimes  said 
that  a  tenancy  from  year  to  year  is  forfeited  by  disclaimer:  but  it 
would  be  more  correct  to  say  that  a  disclaimer  furnishes  evidence  in 
answer  to  the  disclaiming  party's  assertion  that  he  has  had  no  notice 
to  quit;  inasmuch  as  it  would  be  idle  to  prove  such  a  notice  whor(>  the 
tenant  has  asserted  that  there  is  no  longer  any  tenancy. 

Williams,  J.,  concurred.  Rule  absolute} 

1  DeLancey  v.  Gonong,  9  N.  Y.  9,  accord. 

"  Till  within  a  comparatively  recent  period  it  was  considered  that  a  tenant 
could  not  in  any  sense,  repudiate  his  tenancy-,  even  where  it  existed  bj"  parol 
merely,  or  from  year  to  year;  or  that  he  could  not  do  this  without  surrender- 
ing or  abandoning  the  premises.  But  it  is  now  settled  otherwise  in  this  State, 
and  in  the  United  States  Supreme  Court.  The  tenant.  b>'  distinct  notice  to 
his  landlord  that  he  will  no  longer  hold  the  premises  under  him,  has  been 
regarded  here  as  commiting  an  absolute  disseisin,  and  after  that,  "as  holding 
adverse  to  the  landlord,  and  imless  evicted  before  the  term  of  the  Statute  of 
Limitations  expires,  he  will,  by  such  advense  possession,  acquire  title  in  his 
own  right.  In  WiUison  v.  Watkin.-;,  3  Peters  U.  S.  48,  Mr.  Justice  Baldwin 
says:  '  Had  there  been  a  formal  lease  for  a  term  not  then  expired,  the  lessee 
forfeited  it  by  this  act  of  hostility;  had  it  been  a  lease  at  will,  from  year  to 
year,  he  was  entitled  to  no  notice  to  c^uit  before  an  ejectment.  The  landlord's 
action  would  be  as  against  a  trespasser,  as  nuu-h  so  as  if  no  relation  had  ever 
existed  between  them.'  This  case  was  professedly  followed  in  two  cases  in 
this  State:  Greene  v.  Munnon,  9  Vt.  37;  Hall  v.  Dewey,  10  Vt.  593;  and  has 
been  recognized  in  many  others.  It  is  undoubtedly  a  new  doctrine,  and 
adopted  here  from  a  regard  to  the  difference  in  our  land  tenures,  and  in  our 
civil  and  social  relations  and  institutions  in  many  respects,  from  those  in 
England."  Per  Redfield,  C.  J.,  in  Sherman  v.  Champlain  Transportation  Co., 
31  Vt.  162,  177.  See  2  Taylor,  Landl.  and  Ten.,  9th  ed.,  §  522;  2  Tiffany, 
Landl.  and  Ten.,  §   192. 

The  landlord  must  have  notice.  Bedluu  v.  .V.  }'.  Dry  Dock  Co.,  112 
N.  Y.  263.    But  compare  lUinois  Steel  Co.  v.  Budzisz.  139  Wis.  281. 

On  the  adverse  possession  of  land  encroached  on  by  a  tenant  for  years, 
see  Wilhebn  v.  Herron,  178  N.  W.  (Mich.)  769;  Phark  v.  Jones,  122  Mo.  125; 
Dempsey  v.  Kipp,  61  N.  Y.  462.  470;  Read  v.  Allen,  63  Tex.  154;  Doe  d. 
Lloyd  V.  .lones,  15  M.  &  W.  580;  Andreios  v.  Haile.^,  2  E.  &  B.  349;  Doe  d. 
Crojt  V.  Tidbury,  14  C.  B.  304;  KingHmill  v.  Millard.  11  Exch.  313;  Tabor  v. 
Godfrey,  64  L.  J.  Q.  B.  245;   18  Halsbury,  Laws  of  England,  §§  1079-1081. 


56  MIXTEK    V.    WOODCOCK  [CHAP.    II 

MIXTER  V.  WOODCOCK 
154  Mass.  535.     1891. 

Writ  of  entry,  dated  December  7,  1886,  to  recover  a  parcel  of 
land  on  Fruit  Street  in  Worcester.  After  the  former  decision,  re- 
ported in  147  Mass.  613,  the  action  at  law  was  changed  in  the  Supe- 
rior Court  to  a  suit  in  equity.  'At  the  hearing,  before  Blodgett,  J.,  it 
appeared  in  evidence  that  John  E.  Luther,  who  died  in  June,  1856, 
leaving  a  widow  but  no  issue,  was  seised  in  fee  of  the  parcel  in  ques- 
tion; that  by  his  will  his  widow,  under  the  former  decision,  took  a 
life  estate  only  in  the  premises,  but  remained  in  possession  from  the 
death  of  the  testator  until  her  death  in  1886,  believing  that  she  took 
an  estate  in  fee  under  the  will ;  and  that  she  occupied  them  openly  in 
all  respects  as  her  own,  claiming  title  in  fee  thereto.  On  three 
several  occasions,  in  1862,  1876,  and  1885,  she  gave  mortgages  there- 
of in  the  usual  form,  all  of  which  were  recorded,  and  all  but  the  last 
of  which  were  discharged.  The  plaintiff,  who  was  the  demandant 
in  the  writ  of  entry,  was  the  mortgagee  named  in  the  last  of  these 
mortgages,  and  believed  that  the  widow  had  a  title  in  fee  at  the 
time  he  took  his  mortgage.  The  condition  of  the  mortgage  having 
been,  broken,  he  duly  foreclosed,  under  a  power  of  sale  contained 
therein,  and  a  conveyance  was  afterwards  made  to  him.  In  August, 
1886,  he  entered  upon  the  premises  for  the  purposes  of  foreclosure, 
but  never  had  any  other  possession  thereof.  The  defendant,  who 
was  a  tenant  in  the  writ  of  entry,  made  no  claim  of  title,  but  was  in 
possession  at  the  time  the  writ  of  entry  was  brought,  and  continued 
in  possession  of  the  demanded  premises  at  the  time  of  the  hearing. 

The  judge  ruled  that,  as  matter  of  law,  it  having  been  decided 
that  the  widow  of  John  E.  Luther  took  a  life  estate  only  under  the 
will,  she  could  not  acquire  a  title  in  fee  to  the  premises  by  adverse 
possession,  and  that  the  plaintiif  took  no  title  by  his  mortgage  and 
its  foreclosure  which  would  enable  him  to  maintain  this  suit  in 
equity,  or  an  action  at  law,  against  the  defendant  for  the  recovery 
of  the  land  and  dismissed  the  bill,  and  reported  the  case  for  the  de- 
termination of  this  court. 

Morton,  J.  Without  vmdertaking  to  say  that  in  no  case  could 
the  occupation  of  a  life  tenant  be  so  long  continued  and  of  such  a 
character  as  to  vest  in  him  a  title  in  fee  by  adverse  possession,  and 
without  intending  to  intimate  that  it  could,  we  think  that  the  ruling 
of  the  judge  who  heard  this  case  was  correct.  Under  the  decision 
in  the  case  of  Mixter  v.  Woodcock,  147  Mass.  613,  the  only  estate 
which  the  widow  had  was  a  life  tenancy.  She  was  in  possession  of 
the  premises  as  a  life  tenant.  Her  belief  that  she  owned  the  prop- 
erty absolutely  did  not  give  her  any  additional  rights,  nor  did  the 
like  belief  on  the  plaintiff's  part  help  matters.  That  simply  made 
the  mistake  a  common  one.       The  widow  Avas  not  in  possession  under 


SECT,    ij  MIXTER    V.    WOODCOCK  57 

ji  deed  or  itistnuueiit  whicli  i)urported  to  give  her  a  fee,  but  in  fact 
only  gave  lier  a  life  estate,  and  whicli  might  have  afforded  some  color 
for  her  belief  that  she  owned  the  fee  and  for  her  acts;  she  was  in 
possession  under  the  will  of  her  husband,  which  did  not  purport  to 
give,  and  did  not  in  fact  give,  her  anything  except  a  life  estate. 
If  the  mortgages  executed  by  her  may  be  regarded  as  acts  of  dis- 
seisin, so  that  the  reversioner  could  have  entered,  he  was  not  obliged 
to  do  so,  but  could  wait  until  his  right  of  entry  accrued  upon  her 
death;  and  neither  the  widow  nor  those  who  claim  under  her  would 
acquire  any  rights  against  him,  or  title  to  the  property,  by  virtue 
of  her  or  their  occupation  in  the  mean  time.  Wells  v.  Prince,  9 
Mass.  508;  Wallingford  v.  Hearl,  15  Mass.  471;  Tilson  v.  Thomp- 
son, 10  Pick.  359;  Miller  v.  Ewing,  6  Cush.  34.  The  demandant 
must  recover  on  the  strength  of  his  own  title.  Failing  to  show 
title,  he  must  at  least  show  a  better  right  to  possession  than  the 
tenant.     This  he  does  not  do. 

The  decree  dismissing  the  bill  must  therefore  be  Affirmed.^ 

1  See  Pooler  v.  Hyne,  213  F.  R.  154;  Mettler  v.  Miller,  129  111.  630,  642; 
Maring  v.  Meeker,  263  111.  136;  Keith  v.  Keith,  80  Mo.  125;  Anderson  v. 
Miller,   103  Neb.  549. 

Adverse  Possession  against  reversioners  and  remaindermen. 

Where  there  is  a  reversion  or  the  remainder  is  vested.  Gregg  v.  Tesson, 
1  Black  (U.  S.)  150;  Woodstock  Iron  Co.  v.  Fullenwidcr,  87  Ala.  584;  Sloss- 
Sheffield  Co.  v.  Yancey,  202  Ala.  458;  Franke  v.  Bcrkncr,  67  Ga.  264;  Higgins 
V.  Crosby,  40  111.  260;  Kibbie  v.  Williams,  58  111.  30;  Castner  v.  Wolrod,  83 
111.  171;  Field  v.  Peoples,  180  111.  376;  Cassem  v.  Prindle,  258  111.  11;  AlU.^on 
V.  White,  285  111.  311;  Gibbs  v.  Gerdes,  291  111.  490;  Marray  v.  Quigley,  119 
Iowa,  6;  Nevelier  v.  Foster,  186  Iowa  1307;  Bates  v.  Adams,  182  Ky.  100; 
May  V.  Chesapeake  &  O.  Ry.  Co.,  184  Ky.  493;  McCoy  v.  Poor,  56  j\Id. 
197;  Wells  v.  Prince,  9  Ma.«^s.  508;  Wallingford  v.  Hearl,  15  Mass.  471; 
Stevens  v.  Wi^iship,  1  Pick.  (Mass.)  317;  Tilson  v.  Thompson,  10  Pick. 
(Mass.)  359;  Whitaker  v.  Whitaker,  157  Mo.  342;  Bohrer  v.  Davis,  94  Neb. 
367;  Criswell  v.  Criswell,  101  Neb.  349;  Foster  v.  Marshall,  22  N.  H.  491; 
Jackson  v.  Mancius,  2  Wend.  (N.  Y.)  357;  Baker  v.  Oakwood,  123  N.  Y. 
16;  Thompson's  Heirs  v.  Green,  4  Ohio  St.  216;  Moore  v.  Luce,  29  Pa.  260; 
Jeffcoat  V.  Wingard,  110  S.  C.  482;  Central  Land  Co.  v.  Laidley,  32  W.  Va. 
134. 

Where  the  remainder  is  contingent.  Graft  v.  Rankin,  250  Fed.  150; 
Brian  v.  Melton,  125  III.  647;  Miller  v.  Pence,  132  111.  149;  McFall  v.  Kirk- 
patrick,  236  111.  281;  /////  v.  Hill,  264  111.  219;   Fearne,  C.  Rem.  287. 

See  Lewis  v.  Barnhart,  145  U.  S.  56;  Dugan  v.  Follett,  100  III.  581; 
Le-wis  V.  Pleasants,  143  III.  271;  Weigel  v.  Green,  218  111.  227;  Kales,  14 
111.  L.  Rev.  124;  Kales,  Estates  and  Future  Interests,  2d  ed.,  §§  383-397. 

Adverse  Possession  as  a  bar  to  dower.  Willia77is  v.  Williams,  89  Ky.  381 ; 
Putney  v.  Vinton,  145  Mich.  219,  9  Ann.  Gas.  149  note;  Winters  v.  De  Turk, 
133  Pa.  359.  Gurte.^y.  Shorlall  v.  Hinklcy,  31  111.  219;  Calvert  v.  Murphy, 
73  W.  Va.  731,  52  L.  R.  A.  n.  s.  535  note. 


58  DOE    (I.    SOUTEU    V.    HULL    ET    AL.  [CHAP.    II 

DOE  d.  SOUTEK  v.  HULL  ET  AL. 
2  Dovvl.  &  R.  38.     1822. 

Ejectment  [on  the  several  demises  of  John  Souter  and  George 
Chatfield  and  Elizabeth  his  wife]  to  recover  the  possession  of  certain 
freehold  lands  and  premises  situate  at  Midhurst,  in  Sussex.  At  the 
trial  before  Park,  J.,  at  the  last  assizes  for  the  County  of  Sussex, 
the  case  was  this :  Henry  Souter,  the  father  of  the  lessor  of  the 
plaintiff  John  Souter,  being  seised  in  fee  of  the  premises  in  question, 
made  his  will,  bearing  date  the  12th  of  June,  1788,  by  which  he 
gave  the  same  to  his  wife  in  these  words,  "  I  give  to  my  loving  wife 
Mary  Souter  all  my  household  goods  and  chattels,  and  I  give  to  her 
a  barn  and  piece  of  free  land  at  Midhurst,  in  Sussex."  On  the  7th 
of  October,  1790,  the  testator  died  seised,  leaving  John  Souter,  who 
claimed  to  be  his  eldest  sou  and  heir-at-law,  and  his  said  wife,  him 
surviving.  On  the  9th  of  October,  1794,  the  widow  and  John 
Souter  jointly  conveyed  the  premises  to  Christopher  Hull,  the  father 
of  the  defendants,  by  deed  of  bargain  and  sale,  who  took  possession 
and  remained  undisturbed  therein  till  July,  1814,  when  he  died, 
leaving  his  will,  whereby  he  demised  the  premises  to  the  defendants, 
in  equal  moieties.  Whicher  Souter  Avas,  in  fact,  the  eldest  son  and 
heir-at-law  of  the  testator  Henry  Souter,  whom  he  survived,  but  he 
did  not  join  in  the  conveyance  to  Mr.  Hull.  On  the  6th  of  J^Tovem- 
ber,  1810,  Whicher  Souter  made  his  will,  by  which  he  bequeathed 
all  his  real  estate  to  his  wife  Elizabeth  Souter,  and  his  brother  John 
Souter  (the  party  who  joined  in  the  conveyance  to  Mr.  Hull),  upon 
trust  to  make  an  inventory  thereof,  and  first,  by  sale  of  part,  to  pay 
his  debts,  &c.,  the  residue  to  his  wife  for  life,  or  while  she  continued 
his  widow,  and  upon  her  death,  or  marriage,  to  his  children,  share 
and  share  alike.  Whicher  Souter  died  shortly  after  making  this 
Avill,  and  in  1803  his  widoAV  married  the  lessor  of  the  plaintiff, 
George  Chatfield.  Upon  this  case  it  w^as  contended,  that  the  lessors 
of  the  plaintiff  were  entitled  to  recover  the  premises,  as  devisees  in 
trust  under  the  Avill  of  Whicher  Souter,  the  heir-at-laAv  of  Henry 
Souter,  the  original  testator,  and  that  the  defendants  must  resort  to 
their  action  against  John  Souter,  the  party  to  the  conveyance  to  Mr. 
Hull,  upon  the  deed.  For  the  defendants  three  objections  were 
taken.  First,  that  as  Whicher  Souter  was  not  in  possession  when 
he  made  his  Avill,  he  could  not  devise  a  right  of  entry;  second,  that 
the  realty  did  not  pass  under  his  Avill,  the  language  of  it  being  clearly 
referable  to  personal  property  only,  and  third,  that  as  Mr.  Hull 
had  maintained  an  adverse  possession  for  twenty-two  years,  and  had 
died  so  ad^^ersely  possessed,  and  had  bequeathed  the  estate  to  his 
children,  a  descent  was  cast.  The  learned  judge,  hoAvever,  was  of 
opinion  that  the  lessors  of  the  plaintiff  had  shoAvn  a  good  title,  and 
directed  the  jury  to  find  a  verdict  for  tlie  plaintiff,  reserving  the 


SECT,    l]  DOE    d.    SOUTER    V.    HULL    ET    AL.  59 

})()iiits  of  hiw  raised  i'nv  the  (lot'eudants,  with  lilicrty  to  them  to 
laove  to  enter  a  nonsuit,  if  the  court  should  he  of  opinion  tliat  the 
objections  were  well  founded. 

Abbott,  C  J.  I  am  of  opinion  that  then;  is  no  foundation  for 
either  of  the  objections  presented  for  our  consideration.  With  re- 
spect to  the  first,  I  think  there  is  no  ground  for  saying,  that  the 
adverse  possession  of  Mr.  Hull  has  operated  as  a  disseisin  of  Whicher 
Souter.  Mr.  Hull  did  not  take  possession  wrongfully,  he  only 
wrongfully  continued  possession.  He  came  in  under  right  and  title, 
which  remained  good  during  the  life  estate  of  Henry  Souter's  widow, 
but  ceased  at  her  death,  and  from  that  period  he  continued  in  pos- 
session wrongftilly.  Btit  what  is  the  effect  of  that?  No  more  than 
that  he  is  tenant  by  sufferance  to  Whicher  Souter,  who  permitted 
him  for  a  period  to  remain  in  possession.  It  lias  been  held  in  a 
recent  case  in  this  court,  that  a  mortgagor  in  actual  possession  of 
mortgaged  premises  is  tenant  by  sufferance  to  the  mortgagee,  and 
this  is  a  still  stronger  case  than  that.  I  know  of  no  authority  which 
says,  that  a  mere  wrongful  possession  divests  the  estate  of  the  party 
against  whom  the  possession  is  adversely  held.  If  tlie  argument  is 
to  be  carried  to  that  extent,  a  mere  adverse  possession  might  be 
made  equivalent  to  a  fine  and  feoffment.  Then,  as  to  the  second 
objection,  I  am  decidedly  of  opinion,  tliat  no  descent  has  been  cast 
in  this  case.  To  allow  the  argument  on  this  point  would  be  to 
allow,  that  wherever  a  wrongful  possessor  dies  in  possession,  and  his 
heir  enters,  the  real  heir-at-law  cannot  siipport  ejectment.  That 
would  be  a  monstrous  proposition  generally,  but  especially  in  this 
case,  where  the  heir-at-law  was  never  disseised,  and  the  defendants 
in  the  action  were  never  seised  at  all.  The  language  of  "  descent 
cast  "  imports  that  the  ancestor  is  seised  and  the  question  is  begged, 
if  it  is  assumed  that  in  this  case  Hull,  the  ancestor  of  the  defendants, 
was  seised. 

Bayley,  J.  I  am  of  the  same  opinion.  In  order  to  bar  the  power 
of  devising  a  right  of  entry,  there  must  be  an  actual  disseisin  of  the 
devisor  a  mere  adverse  possession  Avill  not  suffice ;  he  must  be  com- 
pletely ousted  of  the  freehold.  The  question,  then,  is  whether  Whicher 
Souter,  the  devisor  und(>r  whose  will  the  lessors  of  the  plaintiff'  claim, 
was  ever  divested  of  the  freehold;  and  T  am  of  o])inioii  that  he  never 
was.  The  relation  of  Mr.  Hull  to  Whicher  Souter  is  that  of  land- 
lord and  tenant;  the  former  was  tenant  by  sufferance  to  the  latter 
from  the  moment  of  Mrs.  Souter's  decease.  This  point  was  laid 
down  in  this  court  in  the  recent  case  cited  by  My  Lord,  and  is 
founded  tipon  the  doctrine  in  Lord  Coke.  Co.  Lit.  240  b.  The 
lessors  of  the  plaintiff  have  shown  a  clear  title  in  Whicher  Souter, 
and  if  he  had  an  estate  in  the  premises,  he  was  competent  to  devise 
it ;  he  does  devise  it,  and  it  vests  in  the  lessors  of  the  plaintiff  as  de- 
visees in  trust  under  his  will.  To  support  a  descent  cast,  it  must  be 
shown  that  the  ancestor  was  seised.     Here,  there  was  no  seisin  of 


60  DOE   (1.    PARKER    V.   GREGORY  [CHAP.   II 

Mr.  Hull,  tlio  ancestor.  In  ii  case  whicli  I  rcmeniLcr  came  from 
Warwick  some  time  since,  the  counsel  relied  upon  a  descent  cast.  It 
appeared  in  evidence  that  the  party  originally  came  into  possession 
rightfully,  and  his  possession  was  lawful,  until  a  particular  person 
died.  After  the  death  of  that  person,  the  party  held  over,  and  levied 
a  fine,  and  when  he  died  an  ejectment  was  brought  against  his  heir. 
On  behalf  of  the  heir  it  was  insisted,  that  there  had  been  a  descent 
cast.  'No,  said  the  court ;  for  upon  the  death  of  the  particular  per- 
son alluded  to,  the  ancestor  became  tenant  by  sufferance  only;  and 
therefore  there  could  not  be  a  descent  cast,  because  there  was  no 
seisin.  The  definition  which  Lord  Coke  gives  of  a  tenant  by  suffer- 
ance, is  he  who  originally  comes  in  by  right,  but  continues  in  posses- 
sion by  wrong.  Now,  that  is  exactly  the  description  of  Mr.  Hull, 
under  whom  the  defendants  claim,  and  therefore  I  think  the  lessors 
of  the  plaintiff  are  entitled  to  recover.  It  is  said,  that  there  has  been 
an  adverse  possession  for  twenty-two  years  in  this  case.  I  know  of 
no  case  in  which  it  has  been  held,  that  a  mere  adverse  possession  (if 
this  case  is  so  put),  can  operate  as  a  disseisin,  to  prevent  the  owner 
of  the  freehold  from  devising  it  by  will.  Mr.  Hull  was  only  a  dis- 
seisor in  one  way,  namely,  at  the  election  of  Whicher  Souter.  There 
are  many  authorities  which  say,  that  this  would  only  be  a  disseisin 
at  the  election  of  the  owner  of  the  freehold  of  inheritance;  and  if 
Whicher  Souter  had  thought  fit  to  treat  it  as  a  disseisin,  he  would 
be  warranted  in  doing  so;  but  he  was  not  bound  to  do  so.  Doe  d. 
Athyns  v.  Horde,  Cowp.  689.  On  these  grounds,  I  am  of  opinion 
that  the  lessors  of  the  plaintiff  are  entitled  to  recover. 

HoLDROYD,  J.,  and  Best,  J.,  concurred.  Rule  refused} 


DOE  d.  PARKEE  v.  GREGORY 
2  A.  &  E.  14.     1834. 

Ejectment  for  lands  in  Gloucestershire.  On  the  trial  before 
Alderson,  B.,  at  the  last  Gloucester  Summer  Assizes,  the  following 
facts  were  proved.  Thomas  Rogers,  being  siesed  in  fee  of  the  lands 
in  question,  devised  them  to  his  son  Thomas  Rogers  for  life,  re- 
mainder to  William  Rogers  in  tail  male,  remainder  to  the  devisor's 
right  heirs  in  fee.  The  will  gave  a  power  to  the  tenant  for  life  to 
settle  a  certain  portion  of  the  lands  upon  his  wife  for  life,  by  way  of 
jointure.  After  the  death  of  the  devisor,  the  son  Thomas  Rogers, 
being  then  tenant  for  life,  settled  the  lands  in  question,  being  not 
more  than  the  portion  defined,  upon  his  wife  for  life.  He  died  in 
1879,  leaving  his  wife  surviving,  who  afterwards  married  a  person 
of  the  name  of  Vale.  In  1810,  Mr,  and  Mrs.  Yale  levied  a  fine  of 
the  lands  to  their  own  use  in  fee.     In  1812,  Mrs.  Yale  died,  more 

1  See  Sndth  d.  Teller  v.  Burtis,  6  Johns.  (N.  Y.)  197. 


SECT,    l]  DOE    d.    PARKER    V.    GREGORY  61 

than  twenty  years  before  the  commencement  of  this  action.  Mr.  and 
Mrs.  Vale  had  continued  in  possession  of  the  lands  until  Mrs.  Vale's 
death,  and  Mr.  Vale  from  thenceforward  continued  in  possession  till 
his  own  death,  which  occurred  in  1832.  William  Rogers  died,  leav- 
ing several  children,  all  of  whom  died  before  Mrs.  Vale;  and  of  whom 
none  left  issue,  except  one  daughter,  who  died  one  month  before  Mrs. 
Vale,  leaving  issue  a  son,  who  died  without  issue  in  1814,  within 
twenty  years  of  the  bringing  of  the  action.  The  lessor  of  the  plain- 
tiff was  heir  at  law  to  the  devisor,  Thomas  Rogers.  It  did  not 
appear  how  the  defendant  got  into  possession.  On  these  facts,  the 
learned  judge  nonsuited  the  plaintiff,  on  the  ground  that  the  right  of 
entry  was  barred  by  the  Statute  of  Limitations,  but  he  reserved  leave 
to  move  to  set  the  nonsuit  aside,  and  enter  a  verdict  for  the  plaintiff. 

Per  Curiam  (Lord  Denman,  C  J.,  Taunton,  Patteson,  and  Wil- 
liams, JJ.)  The  fine  will  make  no  difference;  ^  but,  as  to  the  ques- 
tion of  the  husband's  adverse  possession,  we  will  take  time  to  consider. 

On  a  subsequent  day  Lord  Denman,  C.  J.,  delivered  the  judgment 
of  the  court. 

The  other  points  moved  by  my  Brother  Talfourd  were  disposed  of 
by  the  court,  but  we  wished  to  consider  whether  he  Avas  entitled  to  a 
rule  on  the  ground  that  there  had  been  no  adverse  possession  for 
twenty  years.  The  fact  was,  that  the  defendant  had  been  in  posses- 
sion for  a  longer  period,  from  his  wife's  death,  but  he  came  in  origin- 
ally in  her  right,  and  had  not  directly  ousted  the  rightful  owner,  but 
merely  continued  where  he  was,  to  his  exclusion.  A  case  of  Reading 
V.  Raivsterne,  reported  by  Lord  Raymond  and  Salkeld,  2  Ld.  Raym. 
830  s.  c.  2  Salk.  423,  was  mentioned  but  in  that  case,  though  an 
actual  disseisin  is  declared  necessary,  those  words  must  be  taken  with 
reference  to  the  subject-matter,  and  are  there  contra-distinguished 
from  the  mere  perception  of  rents  and  profits,  in  the  case  of  joint- 
tenants.  But  in  Doe  dem.  Burrell  v.  Perkins,  3  M.  &  S.  271,  the 
court  was  of  opinion  that  a  fine  levied  by  a  person  who  was  in  pos- 
session under  the  same  circumstances  as  the  defendant  here,  operated 
nothing,  because  he  came  in  by  title,  and  had  no  freehold  by  dis- 
seisin ;  and  it  was  argued,  that  the  defendant  here  was  also  to  be  con- 
sidered as  having  entered  rightfully,  and  committed  no  disseisin. 
We  are,  however,  of  opinion,  that  though  this  may  be  so  for  the  pur- 
pose of  avoiding  a  fine,  it  cannot  prevent  the  defendant's  possession 
from  being  wrongful,  from  the  very  hour  when  his  interest  expired 
by  his  wife's  death.  It  is  clear  that  he  might  have  been  immediately 
turned  out  by  ejectment.  We  think,  therefore,  that  his  continuing 
the  same  possession  for  twenty  years  entitles  him  to  the  protection  of 
the  Statute  of  Limitations,  and  that  this  action  has  been  brought 
too  late.  Rule  refused.'^ 

1  Stat.  11  Hen.  VII.  c.  20;  Stat.  32  Hen.  VIII,  c.  36,  §2. 

2  2  Smith,  L.  C,  11th  ed.,  652-655. 


62  SUMNEK    V.    STEVENS  [CHAP.    H 

SUMNER  V.  STEVENS 

6  Met.  (Mass.)  337.     1843. 

Writ  of  entry.  The  demandant  claimed  title  to  the  demanded 
premises  under  a  deed  of  warranty  from  Stephen  Stevens,  her  father, 
who  was  also  father  of  the  tenant.  At  the  trial,  before  Wilde,  J.,  the 
tenant  rested  his  defence  upon  a  title  by  disseisin  of  said  Stephen, 
and  offered  evidence  tending  to  show,  that  more  than  20  years  before 
the  date  of  the  demandant's  M^rit,  and  before  said  Stephen's  deed  to 
the  demandant,  said  Stephen  made  a  gift  to  him,  by  parol,  of  the  de- 
manded premises,  and  that  he  afterwards  went  into  possession  thereof, 
and  continued  in  exclusive  possession  upwards  of  20  years. 

Upon  this  evidence,  the  jury  were  instructed,  that  if  they  believed 
it,  and  also  believed  that  the  tenant  entered  and  continued  his  pos- 
session, claiming  title,  this  would  constitute  a  title  by  disseisin,  and 
that  they  should  return  a  verdict  for  the  tenant.  The  jury  found  a 
verdict  for  the  tenant,  which  is  to  be  set  aside,  if  the  foregoing  in- 
struction was  incorrect. 

Shaw%  C.  J.  The  case  shows  that  the  tenant  entered,  more  than 
twenty  years  before  the  commencement  of  this  action,  under  a  parol 
gift  from  his  father,  and  has  had  the  sole  and  exclusive  possession 
ever  since.  Had  the  tenant  simply  shown  an  adverse  and  exclusive 
possession  twenty  years,  he  would  have  shown  that  the  owner  had 
no  right  of  entry,  and  that  would  have  been  a  good  defence  to  this 
action.  Is  it  less  so,  that  the  tenant  entered  under  color  of  title? 
A  grant,  sale  or  gift  of  land  by  parol  is  A'oid  by  the  Statute.  But 
when  accompanied  by  an  actual  entry  and  possession,  it  manifests 
the  intent  of  the  donee  to  enter  and  take  as  owner,  and  not  as  tenant ; 
and  it  equally  proves  an  admission  on  the  part  of  the  donor,  that  the 
possession  is  so  taken.  Such  a  possession  is  adverse.  It  would  be 
the  same  if  the  grantee  should  enter  under  a  deed  not  executed  con- 
formably to  the  Statute,  but  which  the  parties,  by  mistake,  believe 
good.  The  possession  of  such  grantee  or  donee  cannot,  in  strictness, 
be  said  to  be  held  in  subordination  to  the  title  of  the  legal  owner; 
but  the  possession  is  taken  by  the  donee,  as  owner,  and  because  he 
claims  to  be  owner;  and  the  grantor  or  donor  admits  that  he  is 
owner,  and  yields  the  possession  because  he  is  owner.  He  may  re- 
claim and  reassert  his  title,  because  he  has  not  conveyed  his  estate 
according  to  law,  and  thus  regain  the  possession ;  but  until  he  does 
this,  by  entry  or  action,  the  possession  is  adverse.  Such  adverse 
possession,  continued  twenty  years,  takes  away  the  owner's  right  of 
entry.  Barker-  v.  Salmon,  2  Met.  32;  Parker  v.  Proprietors  of 
Locks  and  Canals,  3  Met.  91;  Brown  v.  King,  5  Met.  173;  Clapp 
V.  Bromagham,  9  Cow.  530.  We  have  not  used  the  term  "  dis- 
seised," because  the  accurate  definition  and  description  of  disseisin 
has  been  the  subject  of  much  discussion.     The  term  is  somewhat 


SECT.    l]  GRUBE    V.    WELLS  63 

equivocal,  and  tlic  same  facts  may  prove  a  disseisin,  for  some  pur- 
poses and  in  some  aspects,  and  not  in  otliei's.  It  is  enough  for  the 
decision  of  this  case,  that  the  tenant  had  the  actual,  exclusive  and 
adverse  possession  of  the  estate  more  than  twenty  years,  by  which 
the  owner,  and  all  persons  claiming  under  him,  were  barred  of  their 
entry  and  right  of  action.     Kev.  Sts.  c.  119,  §  1. 

Judgment  on  the  verdict.^ 


GRUBE  V.  WELLS 

34  Iowa,  148.     1871. 

Appeal  from  Des  Moines  District  Court. 

Action  to  recover  the  possession  of  a  part  of  lot  260,  in  the  north- 
ern addition  to  the  city  of  Burlington,  being  a  strip  of  about  the 
width  of  fifteen  feet,  of  the  south  end  of  said  lot.  Trial  to  the 
court  without  a  jury,  and  judgment  for  plaintiff.  Defendant 
appeals. 

Beck,  C.  J.  The  District  Court  found  the  following  facts,  and 
thereupon  rendered  judgment  for  plaintiff:  The  plaintiff  is  the 
owner  of  lot  260,  in  the  northern  addition  to  the  city  of  Burlington, 
and  the  defendant  owns  lot  1,  in  Wood's  subdivision,  which  adjoins 
plaintiff's  lot  on  the  south.  About  twenty-five  years  ago  defend- 
ant's grantor  enclosed  lot  1,  and  made  other  improvements  upon  it. 
The  fence  on  the  north  was  set  about  fifteen  feet  over  the  line  upon 
lot  260,  which  was  unenclosed,  and  remained  in  that  condition  until 
within  the  last  four  or  five  years.  Defendant  and  her  grantor  have 
had  actual  possession  and  exercised  rights  of  ownership  over  the 
strip  of  land  in  controversy  since  it  was  enclosed,  but  have  never 
had  any  other  right  or  color  of  title  than  such  as  result  from  the 
possession  stated.  Tliey  have  lield  tlie  land  un(h'r  tlie  belief  that  it 
was  covered  by  the  deeds  conveying  to  them  lot  1,  and  were  not  in- 
formed otherwise  until  within  about  one  year,  when,  upon  an 
accurate  survey,  the  true  line  was  established.  There  is  no  dispute 
about  the  other  boundaries  of  lot  1,  and  defendant's  title  and  posses- 
sion to  the  whole  of  it  have  never  been  questioned.  Defendant  has 
paid  taxes  continuously  on  lot  1,  and  plaintiff  on  lot  260. 

The  question  presented  by  the  foregoing  facts,  as  found  by  the  Dis- 
trict Court  for  determination,  is  this:  Is  defendant  protected  in  lier 
possession  of  the  land  in  dispute  by  the  Statute  of  Limitation? 

I.  The  Statute  of  Limitation  is  not  available  as  a  defence,  unless 
the  defendant  holds  the  land  under  color  of  title,  or  has  had  actual 
adverse  possession  for  the  full  time  limited  by  the  Statute  for  the 

^  Reader  v.  WiUlamt^.  216  S.  W.  (j\Io.)  738,  areord.  Contra.  Clark  v. 
McClure,  10  Grat.  (Va.)  305.  Compare  Urbanec  v.  Urbancc,  174  X.  W. 
(N.  D.)  880. 


64  GRUBE    V.    WELLS  [CHAP.    II 

commencement  of  the  action.  Right  v.  Keithler,  7  Iowa,  92;  Jones 
V.  Hockman,  12  Id.  101 ;  s.  c.  16  Id.  487.  It  is  not  claimed  that  in 
the  case  befoi'e  us  defendant  holds  color  of  title  to  the  land,  but  re- 
covery is  resisted  on  the  ground  that  she  and  her  grantor  have  been 
in  the  adverse  possession  of  the  property  for  the  time  which,  under 
the  Statute,  will  bar  the  action.  We  are  required  to  determine 
whether  the  possession  relied  .upon  is  of  that  character  which  is 
deemed  by  the  law  adverse. 

An  essential  ingredient  of  adverse  possession  is  a  daim  of  right 
hostile  to  the  true  owner.  So,  if  one  enter  upon  the  land  of  another, 
without  any  color  of  title,  or  claim  of  right,  the  possession  thus  ac- 
quired is  not  adverse,  but  the  possessor  will  be  deemed  by  the  law  to 
hold  under  the  legal  owner.  In  such  a  case  no  length  of  possession 
will  make  it  adverse.  Jones  v.  Hockman,  supra;  Bradstreet  v.  Hunt- 
ington, 5  Pet.  402  (440) ;  Ricard  v.  Williams,  7  Wheat.  59;  Comegys 
V.  Corley,  3  Watts,  280;  Gray  v.  McCreary,  4  Yates,  494;  Brandt 
ex  dem.  Walton  v.  Ogden,  1  Johns.  156;  Jackson  ex  dem.  Bonnell  et 
at.  V.  Sharp,  9  Id.  163. 

II.  The  quo  animo  in  which  the  possession  was  taken  and  held  is 
a  test  of  its  adverse  character.  The  inquiry,  therefore,  as  to  the  in- 
tention of  the  possessor,  is  essential  in  order  to  determine  the  nature 
of  his  possession,  and,  before  his  possession  may  be  pronounced  ad- 
verse, it  must  be  found  that  he  intended  to  hold  in  hostility  to  the 
true  owner.  McNamee  v.  Moreland,  26  Iowa,  97.  See  also  Brad- 
street  V.  Huntington,  supra,  and  the  other  authorities  last  cited. 

III.  The  facts  relied  upon  to  constitute  adverse  possession  must 
be  strictly  proved ;  they  cannot  be  presumed.  The  law  presumes  that 
the  possession  of  land  is  always  under  the  regular  title,  and  will  not 
permit  this  presumption  to  be  overcome  by  another  presumption. 
There  can  be  no  such  thing  as  conflicting  legal  presumptions. 
McNamee  v.  Moreland,  supra;  Fele  v.  Doe,  1  Blackf.  129. 

IV.  The  defendant's  grantor,  when  he  entered  upon  the  land  in 
dispute,  did  not  claim  title  thereto.  He  claimed  title  to  lot  1,  but  to 
no  part  of  lot  260.  It  is  very  plain  that,  under  the  authorities  above 
cited,  the  claim  of  right  must  be  as  broad  as  the  possession.  De- 
fendant's claim  was  limited  to  lot  1  —  his  possession  covered  that  lot, 
and  a  part  of  lot  260;  he  took  possession  of  more  land  than  he 
claimed.  But,  is  the  fact,  that  the  belief  of  defendant  and  her 
grantor,  that  lot  1  extended  to  the  line  of  their  possession,  equivalent 
in  law  to  a  claim  of  title  to  the  land  in  dispute?  The  term  belief 
implies  an  assent  of  the  mind  to  the  alleged  fact,  and  is  not  supported 
by  knowledge.  One  may  believe  a  proposition  without  making  it 
known,  or  without  possessing  any  knowledge  upon  the  subject.  It  is, 
or  may  be,  a  passive  condition  of  the  mind,  prompting  in  neither 
action  nor  declaration.  The  term  claim  implies  an  active  assertion 
of  right,  —  the  demand  for  its  recognition.  This  assertion  and  de- 
mand need  not  be  made  in  words;  the  party  may  speak  by  his  acts 


SECT,  ij  GRUBE  V.    WELLS  65 

in  their  support,  as  by  the  payment  of  taxes,  erection  of  improve- 
ments, etc.  One  may  believe  that  he  has  a  right  to  land  Avithout 
asserting  or  demanding  it.  But  it  is  said  the  right  is  asserted  by  the 
possession.  This  cannot  be  admitted,  for  the  possession,  to  be  sup- 
ported by  the  law,  must  be  under  claim  of  right.  The  argument  is 
this :  The  lawful  possession  is  proved  by  the  claim  of  right,  which, 
in  turn,  is  established  by  the  possession.  The  reasoning  is  within  a 
very  narrow  circle.  But  there  is  another  objection  to  it  upon  a  prin- 
ciple above  stated.  The  adverse  character  of  the  possession  must  be 
strictly  proved,  and,  in  the  argument  just  noticed,  it  is  inferred  from 
an  alleged  condition  of  mind. 

As  we  have  seen,  the  intention,  the  quo  animo  of  the  possessor, 
must  be  shown.  This  cannot  be  done  by  mere  proof  of  possession : 
it  must  be  shown  to  exist  under  certain  conditions,  to  be  qualified  by 
the  existence  of  a  claim  of  right ;  for  the  adjective  characteristics  of  a 
thing  cannot  be  shown  by  proof  of  the  mere  existence  of  the  thing 
itself. 

In  this  case  we  have  the  possession  admitted.  As  we  have  seen,  it 
must  be  shown  to  be  adverse  under  a  claim  of  right.  Simple  belief 
on  the  part  of  defendant  of  her  right  to  the  land,  we  have  pointed 
out,  is  not  equivalent  to,  nor  will  it  supply  the  place  of,  the  claim 
required  by  the  law,  and,  as  we  have  shown,  possession  will  not  estab- 
lish the  quo  animo.  There  is,  then,  in  the  case,  absolutely  no  evi- 
dence of  the  adverse  holding  of  defendant. 

The  conclusion  we  have  announced  is  supported  by  decisions  of  this 
court,  and  by  other  authority.  McXame  v.  Moreland,  26  Iowa, 
97;  Brown  v,  Cockerell,  33  xVla.  45;  Hamilton  v.  Wright,  30  Iowa, 
480;  Burnell,  Adm'r  of  Russell,  v.  Maloney,  39  Vt.  579;  St.  Louis 
University  v.  McCune,  28  Mo.  481 ;  Riley  v.  Griffin  et  al.,  16  Ga.  141 ; 
Brown  v.  Gay,  3  Greenl.  126;  Ross  v.  Gould,  5  Id.  204;  Lincoln  v. 
Edgecomh,  31  Me.  345;  Gilchrist  v.  McLaughlin,  7  Ired.  310. 

Y.  The  following  cases  are  cited  by  defendant's  counsel,  in  sup- 
port of  views  contrary  to  the  doctrines  we  have  just  announced.  We 
will  briefly  notice  them. 

Burdich  v.  Ueivly,  23  Iowa,  511,  is  not  in  conflict  with  the  fore- 
going views.  In  that  case,  there  was  a  claim  of  right  distinctly 
shown,  if  not  an  agreement  of  the  parties  to  the  effect,  that  the  dis- 
puted line  was  in  fact  the  true  boundary  of  the  lands.  In  Close  v. 
Samm,  27  Iowa,  503,  the  right  in  question  related  to  the  flowing  back 
of  water  upon  the  mill  of  plaintiff,  by  a  dam  built  by  the  other  party. 
That  right  was  sustained  upon  evidence  of  prescription,  and  it  was 
claimed  to  the  extent  exercised  by  defeii(hiiit.  Here  was  an  express 
claim  of  right.  In  illustration  of  t\\v  ruling  made  by  the  court,  Mr. 
Justice  Cole  supposes  the  case  of  conflicting  claims  to  land  adjacent 
to  a  boundary  line.  But  the  case  he  puts  expressly  supposes  the 
party  availing  himself  of  the  Statute  of  Limitation  to  claim  the 
lands,  and  to  set  up  an  adverse  possession  under  color  of  title.     In 


66  GRUBE    V.    WELLS  [CHAP.    II 

Brown  v.  Bridges,  31  Iowa,  138,  the  right  of  plaintiff  to  recover  is 
based  upon  prescription,  and  it  clearly  appears  that  he  had  claimed 
and  held  possession  of  the  land  in  dispute,  and  upon  that  ground  set 
up  his  prescriptive  title.  In  Stuyvesant  v.  Tomkins,  9  Johns,  61, 
the  point  decided  is,  that  trespass,  quaere  clausum  fregit,  will  not  lie 
on  behalf  of  one  not  in  possession  of  lands.  Whatever  appears  in 
that  case,  relating  to  the  point  under  consideration,  was  said 
arguendo.  In  Lawrence  v.  Hunt,  9  Watts,  64,  the  claim  under  the 
Statute  was  based  upoii  an  actual  survey,  and  in  Brown  v.  Mc- 
Kenney,  Id.  565,  it  is  lield  that  the  party  setting  up  adverse  posses- 
sion is  protected  therein,  as  it  is  expressly  said  by  the  court,  under 
a  claim  of  title  to  tbe  land. 

In  these  authorities,  there  is  to  be  found  nothing  in  conflict  with 
tbe  conclusions  we  have  reached  in  this  case. 

In  our  opinion,  the  ruling  of  the  District  Court  upon  the  facts 
found  is  correct.  Affirmed} 

1  The  doctrine  of  this  case  seems  to  have  had  its  origin  in  Brown  v.  Gay, 
3  Greenl.  (Me.)  126,  and  Gilchrist  v.  McLaughlin,  7  Ired.  (N.  C.)  310.  It  has 
prevailed  to  a  considerable  extent  in  the  United  States.  Brown  v.  Cockerell, 
33  Ala.  38;  Harris  v.  Byrd,  202  Ala.  78;  Winn  v.  Abeles,  35  Kan.  85;  St.  Louis 
University  v.  McCunc,  28  Mo.  481 ;  Ouzts  v.  McKnight,  114  S.  C.  303.  Its 
force  has,  however,  been  diminished  by  later  authorities.  In  Taylor  v. 
Fomhy,  11&  Ala.  621,  626,  the  court  said:  "  It  is  also  well  settled,  that  if  one 
of  two  adjacent  land  owners  extend  his  fence  so  as  to  embrace  within  his  in- 
closure  lands  belonging  to  his  neighbor,  in  ignorance  of  the  true  boundary  line 
between  them,  and  with  no  intention  of  claiming  such  extended  area,  but 
intending  to  claim  adversely  only  to  the  real  and  true  boundary  line,  wherever 
it  may  be,  such  possession  will  not  be  ad\'erse  or  hostile  to  the  true  owner. 
But  if  the  fence  is  believed  to  be  the  true  line,  and  the  claim  of  ownership 
is  to  the  fence,  even  though  the  established  division  is  erroneous,  a  different 
rule  will  apply,  as  has  been  held;  for,  in  such  case,  there  is  a  clear  intention 
to  claim  to  the  fence  as  the  true  line,  and  the  possession  does  not  originate 
in  an  admitted  possibility  of  a  mi.stake.''  To  the  same  effect  are  Miller  v. 
Mills  Coimty,  111  Iowa  654,  658;  Edwards  v.  Fleming,  83  Ivan.  653;  Richard- 
son V.  Watts,  94  Me.  476,  487;  Shotwell  v.  Gordon,  121  Mo.  482,  484;  Schau- 
buch  V.  Dillemuth,  108  Va.  86,  89;  Skanzi  v.  Novak,  84  Wash.  38.  45.  See 
Evert  V.  Turner,  184  Iowa  1253;  Bradstreet  v.  Winter,  109  Atl.  (Me.)  482; 
2  Tiffany,  Real  Prop.,  2d  ed.,  §505. 

The  following  cases  are  contrary  to  Grube  v.  Wells:  Wagner  v.  Meinzer, 
177  Pac.  (Cal.)  293;  French  v.  Pearce,  8  Conn.  439;  Daily  v.  Boudreau,  231 
III.  228;  Cassidy  v.  Lenahan,  294  111.  503;  Carpenter  v.  Rose,  186  Ky.  686; 
Crowder  v.  Neal,  100  Miss.  730;  Orig  v.  Morrison,  142  Wis.  243.  See  Hein- 
richs  V.  Polking,  215  S.  W.  (Ky.)  179;  Erck  v.  Church  and  notes,  post,  p.  86. 

The  decisions  are  collected  in  33  L.  R.  A.  n.  s.  923  note. 

<5  Note  —  Adverse  possession,  in  order  to  be  the  foundation  of  title,  must 
be  actual,  open,  exclusive  and  continuous.  See  Ward  v.  Cochran,  150  U.  S. 
597,  606-610.  As  to  what  constitutes  actual  and  open  possession,  see  Baugher 
V.  Boley,  63  Fla.  75  (statute) ;  St.  Louis  A.  &  T.  R.  R.  Co.  v.  Nugent,  152 
111.  119;  Jackson  v.  Schoonmakcr,  2  Johns.  (N.  Y.)  230;  Bensdorff  v.  Uihlein, 
132  Tenn.  193;  and  compare  cases  on  constructive  possession,  post,  p.  67 
et  seq. 

As  to  the  burden  of  proof  that  the  possession  is  adverse,  see  2  Tiff.  Real 
Prop.,  2d  ed.,  §  503,  where  many  cases  are  collected.    See  New  York,  Laws 


SECT,    l]  CONVEYANCE    OF    LANDS    OF    ANOTHER  67 

1920  Chap.  925.,  Art.  2,  §  35,  ante  p.  30.  The  following  states  have  similar 
legislation:  California,  Code  Civ.  Proc,  (1915).  §321;  Florida,  Comp.  Laws 
(1914),  §1720;  Idaho,  Comp.  Stats.  (1919),  §6599;  Montana,  Rev.  Code 
(1907),  §6435;  North  Dakota,  Comp.  Laws  (1913),  §7365;  South  Dakota, 
Comp.  Laws  (1913),  Code  Civ.  Proc,  §46;  Utah.  Comp.  Laws  (1917),  §6451; 
Wisconsin,  Stats.  (1915),  §4210.  Compare,  Michigan,  Comp.  Laws  (1915), 
§12314;  Nevada,  Rev.  Laws  (1912),  §4955. 

As  to  exclusive  possesson,  see  Tracy  v.  N.  &  W.  R.  R.  Co.,  39  Conn. 
382;  Bloodsworth  v.  Murray,  114  Atl.  (Md.)  575;  Bailey  v.  Carleton,  12 
N.  H.  9,  post,  p.  71;  Weeks  v.  Dominy,  161  App.  Div.  414,  212  N.  Y.  563. 

As  to  continuous  possession,  see  Kentucky  Coal  Co.  v.  Wilder,  165  Ky. 
293;  Britt  v.  Houser,  171  Ky.  494;  Meek  v.  Davis,  189  Ky.  64;  Nelson  v. 
Johnson,  189  Ky.  815,  827,  828;  Stewart  v.  Small,  119  Me.  269;  Bowen  v. 
Guild,  130  Mass.  121;  Dean  v.  Goddard,  55  Minn.  290;  Ovig  v.  Morrison,  142 
Wis.  243;  and  compare  cases  on  tacking,  post,  p.  80  ct  scq. 

As  to  whether  by  adverse  possession  a  public  right  of  way,  which  has 
been  dedicated,  or  taken  by  a  municipality,  can  be  extinguished,  the  cases 
are  m  conflict.  3  Dillon,  Mun.  Corp.,  5th  cd.,  §§  1187-1194;  2  Tiffany,  Real 
Prop..  2d  ed.,  §  417,  p.  1536. 


NOTE 

CONVEY.ANCE  BY  THE  OWNER  OF  LANDS  WHICH  .\RE  IN  THE  ADN'BRSE  POS- 
SESSION OF  ANOTHER.  "  The  Statute  of  32  Hen.  VIIL  c.  9  (1540)  enacted  that 
no  person  should  buy  or  obtain  '  any  pretended  rights  or  titles  '  to  any  lanils, 
tenements  or  hereditaments,  upon  pain  that  the  buyer  and  seller  should  each 
forfeit  the  value.  This  Statute  not  only  imposes  a  penalty  but  avoids  the 
convej'ance.  Doe  d.  Williams  v.  Evans,  1  C.  B.  717  (1845).  It  is  said  to 
have  been  in  affirmance  of  the  common  law.  lb.  See  Hathorne  v.  Haines, 
1  Greenl.  238,  247  (Me.  1821).  [Faton  v.  RabiHson.  81  Conn.  547.  551.  552; 
Powers  V.  Vaii  Dyke,  27  Okla.  27.]  , 

"  In  many  States  b.y  statute  this  rule  has  now  been  abolislied  and  the  con- 
veyance by  the  owner  is  good  even  against  the  person  in  possession.  See 
Stimson.  Am.  St.  Law,  §  1401 ;  Ma.ss.  Rev.  Laws,  c.  127,  §  6.  And  in  some 
States,  the  same  result  has  been  reached  without  the  aid  of  statutes.  Crcsson 
V.  Miller,  2  Watts,  272  (Pa.  1834) ;  Hall  v.  Ashby,  9  Ohio.  96  (1839) :  Poyas  v. 
Wilkins,  12  Rich.  420  (So.  Car.  1860);  Bentinck  v.  Franklin,  38  Tex.  458 
(1873).     [Booth  V.  Young,  149  Ga.  276;  Gurule  v.  Duran,  20  N.  M.  348.] 

"As  there  is  no  seisin  of  easements  the  rule  against  champertous  convey- 
ances has  no  application  to  them.  See  Randall  v.  Chase,  133  Mass.  210.  214 
(1882);  Corning  v.  Troy  Iron  Factory,  40  N.  Y.  191,  204  (1869).  And  it  has 
been  held  not  to  apply  to  a  conveyance  to  a  purchaser  at  a  sale  on  execu- 
tion or  otherwise  by  order  of  court.  See  McGill  v.  Doe  d.  McCall,  9  Ind.  306 
(1857).  It  was  further  held,  in  Webb  v.  Thompson,  23  Ind.  428  (1864),  that 
the  deed  by  a  purchaser  at  an  execution  sale  was  good,  although  the  land  con- 
tinued in  the  adverse  possession  of  the  judgment  debtor.  But  the  contrary 
w-as  held  in  Bernstein  v.  Humes,  60  Ala.  582  (1877).  See  also  Viohtt  v. 
Violett,  2  Dana,  323  (Ky.  1834).  [Etchen  v.  Cheney,  235  F.  R.  104;  Vary  v. 
Sensabaugh,  156  Ala.  459;  Hicks  v.  Burge.<s,  185  Ala.  584;  Bunch  v.  High 
Springs  Bank,  89  .^o.  (Fla.)  121;  Williams  v.  Poole,  31  Ky.  L.  Rep.  757; 
Ander.son  v.  Daugherty,  169  Ky.  308;   Warner  v.  Wickizer,  61  Okla.  200.] 

'■  II  the  owner  peaceably  enters  upon  the  land  and  there  delivers  a  deed 
tliereof,  it  has  been  held  that  his  title  passes.  Warner  v.  Bull,  13  Met.  1 
(Mass.  1847).  And  the  deed  of  the  owner  is  usually  held  to  be  good  against 
all  the  world  except  tjie  person  in  possession  and  those  claiming  under  him. 
Middlcton  v.  Arnold.^.  13  Grat.  489  (Va.  1856);  .McMnhan  v.  Bowe,  114 
Mass.  140   (1873).    But  see  Brinlcy  v.   Whiting,  5  Pick.  347   (Mass.  1827); 


68  JACKSON    d.    GILLILAND    V.    WOODRUFF         [CHAP.    II 

Altemus  v.  Nickell,  115  Ky.  506  (1903).  [Palon  v.  Rohimon,  81  Conn.  547, 
552;  Gibbs  v.  McCoy,  70  Fla.  245;  Vernor  v.  Puurman,  59  Okla.  105.] 

"  If  the  grantee  enters  peaceably  upon  the  land  he  has  been  allowed  to  u.se 
his  title  to  defend  himself  against  a  writ  of  entry.  Cleaveland  v.  Flagg,  4 
Cush.  76  (Mass.  1849). 

"  And  when  the  grantee  has  sued  in  the  name  of  his  grantor,  and  recovered 
judgment,  it  was  held,  that  the  grantor  could  not  release  to  the  person  in 
possession.  Edwards  v.  Parkhurst,  21  Vt.  472  (1849).  But  a  deed  from  the 
grantee  to  the  person  in  possession  was  held  to  release  the  right  of  the 
grantor.  Famum  v.  Peterson,  111  Mass.  148  (1872).  Where  the  owner  gave 
a  deed  of  the  land  to  a  third  person  and  thereafter  gave  a  deed  to  the  person 
in  possession  who  had  knowledge  of  the  prior  deed,  it  was  held,  that  the 
owner  could  not  then  sustain  an  action  for  the  benefit  of  his  first  grantee  to 
eject  the  person  in  possession.    Dever  v.  Hagerty,  169  N.  Y.  481    (1902). 

"  After  judgment  in  an  action  against  the  person  in  possession,  brought  by 
the  grantee  of  the  owner  in  the  name  of  his  grantor,  the  person  previously 
in  possession  cannot  bring  trespass  against  the  grantee  for  acts  done  before 
the  rendering  of  the  judgment,  Edwards  v.  Roys,  18  Vt.  473  (1846).  See 
Hathorne  v.  Haines,  1  Greenl.  238  (Me.  1821). 

"  That  there  may  be  a  possession  which  is  not  adverse  so  as  to  make  a  deed 
champertous  and  which  yet  may  be  adverse  so  as  to  raise  the  bar  of  the 
Statute  of  Limitations,  is  said  in  Crary  v.  Goodman,  22  N.  Y.  170  (1860). 
And  see  Brown  v.  Gay,  3  Greenl.  126,  130  (Me.  1824)  and  other  cases  cited 
in  the  note  on  p.  66  supra.  [Tavis  v.  Bruce,  172  Ky.  396;  Combs  v.  Adams, 
182  Ky.  762.  767;  Green  v.  Horn,  207  N.  Y.  489,  492;  Flesher  v.  Callahan,  32 
Okla.  283.]"  3  Gray,  Gas.  on  Prop.,  2d  ed.,  p.  553.  (The  citations  in  brackets 
have  been  added  by  the  editor). 


D.     Constructive  Possession. 

JACKSON  d.  GILLILAND  v.  WOODRUFF 
1  Cowen  (N.  Y.)  276.     1823. 

Ejectment  for  land  in  Plattsburgh.  The  defendant  relied  on  the 
Statute  of  Limitations.^ 

WooDWORTH,  J.  In  September,  1794,  Z.  Piatt  executed  a  quit- 
claim deed  to  Nathaniel  Piatt  for  783  acres  of  land,  purporting  to 
convey,  thereby,  lands  lying  between  the  east  and  south  lines  of 
allotted  lands  in  Plattsburgh,  and  the  line  of  Friswell's  Patent.  On 
examining  the  boundaries,  and  the  map  annexed  to  the  case,  it  will 
be  found  not  to  include  any  land;  for  there  is  no  gore  between  the 
two  patents.  The  description  follows :  "  Beginning  at  the  distance 
of  7  chains,  8  links,  north  from  the  southeast  corner  of  lot  No.  99, 
in  the  second  division  of  Plattsburgh ;  thence  east,  27  chains  and  50 
links,  to  John  Friswell's  Patent."  Now,  as  it  has  been  shown  that 
Friswell's  Patent  joins  on  Plattsburgh,  the  line  cannot  be  extended 
easterly.  If  it  was  so  extended,  it  would  run  on  lands  included  in 
that  patent,  which  is  not  admissible  under  the  words  of  the  deed. 
The  next  course  is  to  the  northwest  corner  of  the  patent,  which  must 
1  The  statement  of  facts  is  omitted,  and  only  that  portion  of  the  opinion 
which  deals  with  the  question  of  constructive  possession  is  given. 


SECT.    l]  JACKSON    d.    GILLILAND    V.    WOODRUFF  69 

be  understood  the  true  northwest  corner  of  Friswell,  as  proved  by 
the  plaintiffs;  thence  east,  in  the  east  bounds  of  Friswell's  Patent, 
until  the  north  line,  to  the  lotted  land  in  Plattsburgh,  will  include 
783  acres,  between  that  line  and  lot  No.  101,  in  the  second  division 
of  Plattsburgh.  By  tracing  these  lines  on  the  map,  it  will  be  seen 
that  a  line  only  is  given.  No  land  is  included :  consequently  the 
deed  is  a  imllity,  inasmuch  as  nothing  is  granted.  The  question, 
then,  is  Avhether  a  claim  of  title  under  such  an  instrument,  and  an 
annual  occupancy  of  part,  can  constitute  a  good  adverse  possession 
beyond  the  parcel  so  occupied. 

It  is  well  settled  that  a  continued  possession  for  twenty  years, 
under  pretence  or  claim  of  right,  ripens  into  a  right  of  possession 
which  will  toll  an  entry.  It  has  ncn'er  been  considered  necessary,  ro 
constitute  an  adverse  possession,  that  there  should  be  a  riglitful  title. 
Jackson  v.  Wheat,  18  John.  44;  Smith  v.  Lorillard,  10  John.  356; 
Smith  V.  Burtis,  9  John.  180;  13  John.  120;  2  Caines,  83.  The 
party  who  relies  on  an  adverse  possession  must,  in  the  language  of 
Kent,  C.  J.,  in  Jarlson  v.  Shoemaher,  2  John,  234,  show  "substan- 
tial enclosure,  an  actual  occupancy,  a  pedis  possessio,  which  is  defi- 
nite, positive,  and  notorious,  Avhen  that  is  the  only  defence  to  counter- 
vail a  legal  title:"  and  in  One  v.  Campbell,  10  John.  477,  it  is  said, 
"  adverse  possession  must  be  marked  by  definite  boundaries,  and  be 
regularly  continued  down,  to  render  it  availing."  1  John.  156. 
There  is  no  doubt  that  actual  occupancy  and  a  claim  of  title,  whether 
such  claim  be  by  deed  or  otherwise,  constitute  a  valid  adverse  pos- 
session to  that  extent.  But  when  a  party  claims  to  hold  adversely 
a  lot  of  land,  by  proving  actual  occupancy  of  a  part  only,  his  claim 
must  be  under  a  deed  or  paper  title.  This  distinction  has  been  uni- 
formly recognized  and  acted  upon  in  this  court.  It  is  on  this  latter 
ground  the  defendants  must  rest,  if  their  possession  can  avail.  Their 
defence  is  that  Z.  Piatt,  in  1794,  conveyed  783  acres  to  N.  Piatt,  in- 
cluding the  premises;  that  the  first  improvement  was  made  in  1794 
under  Piatt,  being  a  small  parcel,  not  exceeding  two  acres,  which, 
together  with  the  premises  in  question,  afterwards  taken  under  him, 
have  been  continued  to  the  time  of  commencing  this  action.  This 
proof  does  not  make  out  an  adverse  possession  to  'the  premises. 
Color  of  title  under  a  deed,  and  occupancy  of  part,  is  sufficient 
proof  as  to  a  single  lot;  yet  it  follows  from  the  doctrine  laid  down 
that  the  deed,  or  paper  title,  under  which  the  claim  is  made,  must 
in  the  description  include  the  premises.  If  the  title  is  bad,  it  is  of 
no  moment  but  if  no  lands  are  described,  nothing  can  pass.  The 
deed  is  a  nullity,  and  never  can  lay  the  foundation  of  a  good  adverse 
possession  beyond  the  actual  improvement.  There  is  no  evidence 
here  to  show  how  far  Piatt's  claim  extended,  unless  resort  is  had 
to  the  deed.  Boundaries,  therefore,  including  the  premises,  were 
indispensable  in  order  to  give  this  defence  the  semblance  of  plausi- 
bility.    The  defendants  stand  on  the  same  ground  as  if  no  deed  liad 


70  JACKSON    d.    GILLILAND    V.   WOODRUFF         [CHAP.    II 

been  produced  and  then  tlie  possession  eannot  extend  beyond  the 
place  actually  occupied. 

In  Jackson  ex  dem.  Dervient  v.  Lloyd,  decided  October  Term,  1820, 
but  not  reported,  it  appeared  that  the  defendant  had  a  deed  for  lot 
No.  4,  but  took  possession  of  lot  No.  5,  adjoining,  believing  it  to  be 
his  lot,  and  claiming  it  as  such.  It  was  held  that  the  defendant  could 
not  establish  an  adverse  possession  to  the  whole  lot,  by  the  actual 
improvement  of  a  part,  because  no  part  of  No.  5  was  included  in  the 
deed. 

But  if  the  deed  had  been  perfect  in  the  description,  and  included 
783  acres  of  Friswell's  Patent,  the  occupancy  of  a  part  would  not 
make  out  an  adverse  possession  to  the  whole  quantity  conveyed. 
The  doctrine  of  adverse  possession,  applied  to  a  farm  or  single  lot  of 
land,  is  in  itself  reasonable  and  just.  In  the  first  place,  the  quantity 
of  land  is  small.  Possessions  thus  taken,  under  a  claim  of  title, 
are  generally  for  the  purpose  of  cultivation  and  permanent  improve- 
ment. It  is  generally  necessary  to  reserve  a  part  for  woodland. 
Good  husbandry  forbids  the  actual  improvement  of  the  whole.  The 
possessions  are  usually  in  the  neighborhood  of  others ;  the  boundaries 
are  marked  and  defined.  Frequent  acts  of  ownership,  in  parts  not 
cultivated,  give  notoriety  to  the  possession.  Under  such  circum- 
stances, there  is  but  little  danger  that  a  possession  of  twenty  years 
will  be  matured  against  the  right  owner;  if  it  occasionally  happens, 
it  will  arise  from  a  want  of  vigilance  and  care  in  him  who  has  title. 
It  is  believed  that  no  well-founded  complaint  can  be  urged  against 
the  operation  of  the  principle;  but  the  attempt  to  apply  the  same 
rule  to  cases  where  a  large  tract  is  conveyed  would  be  mischievous 
indeed.  Suppose  a  patent  granted  to  A.  for  2000  acres;  B.,  without 
title,  conveys  1000  of  the  tract  to  C,  who  enters  under  the  deed, 
claiming  title,  and  improves  one  acre  only;  this  inconsiderable  im- 
provement may  not  be  known  to  the  proprietor,  or  if  known,  is  dis- 
regarded for  twenty  years.  Could  it  be  gravely  urged  that  here  was 
a  good  adverse  possession  to  the  one  thousand  acres?  If  it  could, 
I  perceive  no  reason  why  the  deed  from  B.  to  C.  might  not  include 
the  whole  patent,  and  after  the  lapse  of  twenty  years  equally  divest 
the  patentee's  title  to  the  Avhole ;  for  there  would  exist  an  actual  pos- 
session of  one  acre,  with  a  claim  of  title  to  all  the  land  comprised 
in  the  patent.  No  such  doctrine  was  ever  intended  to  be  sanctioned 
by  the  court. ^  It  may  therefore  be  safely  affirmed  that  a  small 
possession,  taken  under  the  deed  to  N.  Piatt,  cannot  under  any  cir- 
cumstances be   a  valid   possession   of  the  whole   783   acres,   but  is 

1  Louisville  &  N.  R.  R.  Co.  v.  Mexico  Land  Co.,  82  Miss.  180  isemble) ; 
Thompson  v.  Burhaus,  61  N.  Y.  52;  Chandler  v.  Spear,  22  Vt.  388.  404; 
Pepper  v.  Dowd,  39  Wis.  538,  accord.  See  Zimgibl  v.  Calumet  Dock  Co., 
157  111.  430;  Murphy  v.  Doyle,  37  Minn.  113;  Paine  v.  Hutchins,  49  Vt.  314. 
But  compare  Marietta  Co.  v.  Blair,  173  Ala.  524;  Hicks  v.  Coleman,  25 
Cal.  122;  Furgerson  v.  Bagley,  95  Ga.  516;  Hayes  v.  Lumber  Co.,  180  N.  G. 
252;   Taliaferro  v.  Butler,  77  Tex.  578.    See  6  Col.  L.  Rev.  582. 


SECT.    l]  BAILEY    V.    CARLETON  71 

limited  to  the  parcel  improved.  If  the  doctrine  contended  for  pre- 
vails, it  would  sanction  this  manifest  absurdity  that  a  possession 
under  Piatt's  deed,  which  conveyed  no  title,  would,  as  to  its  legal 
effect,  be  more  beneficial  than  a  possession  taken  under  the  proprie- 
tors of  Friswell's  Patent,  where  there  is  not  only  title,  but  a  good 
constructive  possession,  in  consequence  of  the  grant,  and  actual  occu- 
pancy and  improvement  of  a  part.  It  cannot  be  useful  to  pursue 
the  subject  farther. 

I  am  of  opinion  that  the  plaintiff  is  entitled  to  judgment  for  an 
undivided  fourth  part  of  the  premises.^ 

Savage,  C.  J.,  concurred  in  a  judgment  for  the  plaintiff  for  one 
undivided  fourth  part  of  the  premises,  and  the  court  gave 

Judgment  accordingly. 


BAILEY  V.  CARLETON 
12  N    H.  9.     1841. 

Wkit  of  entry,  to  recover  two  tracts  of  land  in  the  lower  village 
in,  Bath,  one  of  said  tracts  being  ten  rods  in  length,  and  the  other  be- 
ing four  square  rods  of  land,  situated  immediately  south  of  and  ad- 
joining the  first  tract;  both  constituting  a  narrow  strip  of  land,  situ- 
ated betwixt  the  main  road  through  Bath  village,  and  the  Amonoo- 
suck  River. 

The  tract  of  land  first  described,  and  a  house  lot  opposite  to  the 
same,  on  the  other  side  of  the  road,  were  conveyed  to  Amos  Town  by 
Moses  P.  Payson,  by  two  several  deeds,  executed  on  the  27th  of 
March,  1807;  and  the  tract  containing  four  square  rods  was  conveyed 
by  said  Payson,  in  November,  1807,  to  Buxton  &  Blake,  who  sold  to 
one  Morrison,  and,  in  1810,  Morrison  sold  to  said  Town. 

1  The  opinion  of  Sutherland,  J.,  is  omitted. 

A  deed  void  for  want  of  formaUties  or  for  want  of  capacity  of  the  grantor 
may  be  color  of  title.  Wright  v.  Mattison,  18  How.  (U.  S.)  50;  Hecock  v. 
Van  Duscn,  80  Mich.  359;  Miesen  v.  Canfield,  64  Minn.  513;  Ellington  v. 
Ellington,  103  N.  C.  54;  Swijt  v.  Mulkey,  17  Oreg.  532.  Even  though  the  con- 
veyance is  void  on  its  face.  Reddick  v.  Long,  124  Ala.  260;  Wilkinson  v. 
Atkinson,  77  Cal.  485;  Barger  v.  Ilobbs,  67  111.  492;  Davis  v.  Davis,  68  Miss. 
478;  Power  v.  Kitching,  10  X.  D.  254.  But  see  cases  involving  statutes  in 
regard  to  adverse  possession  under  tax  deeds.  Redficld  v.  Parks,  132  U.  S. 
239;  Larkin  v.  Wilson,  28  Kan.  513;  Fischen  v.  Olsen.  155  Mich.  320;  Wofford 
V.  McKinna,  23  Tex.  36;  Matthews  v.  Blake,  16  Wyo.  116.  Compare  Bloom 
v.  Strauss,  70  Ark.  483;  DeFonsta  v.  Cast,  20  Colo.  307;  Beverly  v.  Burke, 
9  Ga.  440,  443;  Ipock  v.  Gaskins,  161  N.  C.  673,  684. 

There  may  be  color  of  title  under  a  defective  decree  of  court.  Bymmi  v. 
Thompson,  3  Ired.  Law  (N.  C.)  578  (semble) ;  Reedy  v.  Canfield',  159  III. 
254;  Jones  v.  Thomas,  124  Mo.  586. 

The  jurisdictions  in  which  there  are  statutes  in  regard  to  color  of  title  will 
be  foimd  ante.  p.  29,  note.  See  decisions  in  those  states  in  note  to  the  prin- 
cipal case. 


72  BAILEY    V.    CARLETON  [CHAP.    II 

In  February,  1813,  Amos  Town  sold  the  three  tracts  of  land  to  his 
brother,  Solomon  Town,  and  in  April,  1815,  Solomon  Town  recon- 
veyed  the  house  lot  opposite  the  demanded  premises,  to  Amos  Town, 
but  did  not  include,  in  the  description,  the  strip  of  land  opposite,  and 
now  in  controversy. 

October  19,  1815,  Amos  Town  conveyed  the  aforesaid  three  several 
tracts,  giving  separate  descriptions  of  each  tract,  to  Ebenezer  Carle- 
ton,  and  subsequently  Carleton's  title  was  conveyed  to  these  de- 
fendants. 

Solomon  Town,  in  June,  1830,  conveyed  the  demanded  premises  to 
one  John  Welsh.  Welsh,  in  February,  1837,  conveyed  to  the  plain- 
tiff, and  this  suit  was  brought  for  the  recovery  of  the  demanded 
premises,  the  15th  of  April,  1837. 

It  appeared  that  Ebenezer  Carleton,  on  his  purchase  of  Amos 
Town  in  October,  1815,  entered  into  possession  of  the  house  lot 
named  in  his  deed,  and  lived  on  and  occupied  the  same  for  many 
years,  until  it  was  conveyed  to  the  defendant,  E.  Carleton,  Jr. 

In  1821,  Ebenezer  Carleton  caused  a  small  building  to  be  removed 
on  to  the  land  in  controversy,  and  from  that  time  to  the  present  it 
has  remained  there,  occupied  by  tenants  under  him  and  these  de- 
fendants. 

The  defendants  claimed  to  hold  the  land  by  virtue  of  peaceable  and 
undisturbed  possession,  by  themselves  and  their  grantor,  for  a  period 
of  twenty  years.  It  a:ppeared  that  until  1821  no  building  had  been 
placed  upon  the  premises,  and  that  the  premises  had  not  been  en- 
closed in  any  manner;  that  from  1815  to  1821,  and  since,  Ebenezer 
Carleton  had  been  in  the  habit,  occasionally,  of  leaving  carts, 
ploughs,  and  farming  utensils  uj^on  this  land,  and  also  of  leaving 
lumber  upon  it.  Evidence  was  offered  to  show  that  it  had  been  a 
common  practice,  by  teamsters  and  owners  of  lumber,  for  thirty  or 
forty  years,  to  lay  lumber  upon  that  side  of  the  road,  in  Bath  village, 
upon  this  tract,  and  above  and  below  it,  and  that  said  Carleton  and 
other  individuals  had  been  in  the  habit  of  laying  lumber  along  the 
river  bank  in  this  manner. 

It  was  contended,  by  the  defendants'  counsel,  that  Ebenezer  Carle- 
ton having  entered  upon  the  house  lot,  claiming  title  to  and  occupy- 
ing the  same,  such  entry  extended  to  the  contiguous  tracts  described 
in  the  same  deed,  and  that  entry  and  occupation  of  one  of  the  tracts 
extended  to  the  whole,  in  the  same  manner  as  though  they  had  been 
conveyed  in  one  description;  that  the  defendants'  grantor  having 
entered  upon  and  disseised  the  plaintiff's  grantor,  October  19,  1815, 
and  the  plaintiff  never  having  re-entered  before  action  brought,  he 
had  no  legal  seisin  in  the  demanded  premises  within  twenty  years 
next  before  the  commencement  of  his  action,  and  his  suit,  therefore, 
could  not  be  maintained;  and  that  the  laying  of  lumber  on  the  de- 
manded premises,  by  persons  claiming  no  right  thereto,  would  not 
affect  the  exclusive  character  of  the  defendants'  adverse  possession. 


SECT.    l]  BAILEY    V.    CARLETON  73 

The  court  instructed  the  jury  that  an  entry  upon,  and  occupation 
of  one  of  the  tracts  conveyed,  would  not  extend  to  the  other  tracts 
described  in  the  deed,  so  as  to  give  a  title  to  them  by  possession ;  that 
entry  upon,  and  occupation  of,  any  portion  of  the  demanded  premises 
would  extend  to  the  whole  tract  entered  upon;  that  it  was  not  essen- 
tial that  any  portion  of  the  land  should  be  enclosed,  in  order  to  con- 
stitute an  adverse  possession ;  that  such  possession  might  be  acquired 
by  the  laying  of  lumber  upon  said  tract,  or  otherwise  occupying  it 
as  a  place  of  deposit  for  farming  utensils,  kc,  but  that  such  pos- 
session must  be  an  open,  visible  possession,  such  as  would  give  reason- 
able notice  of  such  adverse  possession,  to  the  owner. 

A  verdict  was  rendered  for  the  plaintiff,  and  the  defendants  moved 
to  set  the  same  aside,  for  misdirection. 

Parker,  C  J.^  The  general  rule  that  where  a  party  having  color 
of  title  enters  into  the  land  conveyed,  he  is  presumed  to  enter  accord- 
ing to  his  title,  and  thereby  gains  a  constructive  possession  of  the 
whole  land  embraced  in  his  deed,  semes  to  be  settled  by  the  current 
of  authorities,  3  N.  H.  Hep.  27,  Riley  v.  Jameson;  Ditto,  49,  Lund 
V.  Parker,  and  cases  cited. 

And  such  entry  may  operate  as  a  disseisin  of  the  whole  tract ;  and 
the  possession  under  it,  continued  for  the  term  of  twenty  years,  may 
be  deemed  an  adverse  possession,  which  will  bar  the  entry  of  the 
owner  after  that  lapse  of  time.  3  N.  H.  Rep.  49;  13  Johns.  R.  118, 
Jackson  v.  Ellis;  Ditto,  406,  Jackson  v.  Smith;  18  Johns.  355,  Jack- 
son V.  Newton. 

Exceptions  have  been  suggested  to  the  rule  in  some  cases.  One  is, 
where  a  large  tract  of  land  is  embraced  in,  the  deed,  and  a  small  part 
only  has  been  improved.  1  Cowen,  276,  Jackson  v.  Woodruff;  6 
Cowen,  677,  Jackson  v.  Vermili/ea.  Another,  where  the  deed  under 
which  the  claim  is  made  includes  a  tract  greater  than  is  necessary  for 
the  purpose  of  cultivation,  or  ordinary  occupancy.  8  Wend.  R.  440, 
Jackson  v.  OUz. 

These  exceptions  seem  not  to  be  very  definite  in  their  application, 
for  lots,  like  other  things,  are  large  or  small  by  comparison,  and  a 
tract  which  would  be  much  too  large  for  cultivation  by  one,  would 
not  suffice  for  another.  But  they  serve  to  show  the  principle  upon 
which  the  rule  is  founded.  It  is,  that  the  entry  and  possession  of  the 
party  is  notice  to  the  owner  of  a  claim  asserted  to  tlie  land ;  that 
the  limits  of  such  claim  appear  from  the  deed ;  and  that  if  the 
owner  for  twenty  years  after  such  entry,  and  after  notice,  by  means 
of  the  possession,  that  an  adverse  claim  exists,  asserts  no  rights,  he 
may  well  be  presumed  to  have  made  some  grant  or  conveyance,  co- 
extensive with  the  limits  of  the  claim  set  up,  or  that,  after  such 
lapse  of  time,  a  possession,  midcr  such  circumstances,  ought  to  be 
quieted. 

'  Woods,  J.,  having  been   of  (■(nmsil.  did   not   sit. 


74  BAILEY    V.    CARLETON  [CHAP.   II 

Thore  should  be  something  more  than  the  deed  itself,  and  a  mere 
entry  under  it,  —  something  from  which  a  presumption  of  actual 
notice  may  reasonably  arise.  It  is  not  necessary  to  show  actual 
knowledge  of  the  deed.  Acts  of  ownership,  raising  a  reasonable 
l^resumption  that  the  owner,  with  knowledge  of  them,  must  have 
understood  that  there  was  a  claim  of  title,  may  be  held  to  be  con- 
structive notice ;  that  is,  conclusive  evidence  of  notice.  8  N.  H.  Rep. 
264,  Rogers  v.  Jones.  The  owner  may  well  be  charged  with  knowl- 
edge of  what  is  opeidy  done  on  his  land,  and  of  a  character  to  attract 
his  attention.  The  presumption  of  notice  arises  from  the  occupa- 
tion, long  continued;  and  the  notice  of  the  claim  may  well  be  pre- 
sumed, as  far  as  the  occupation  indicates  that  a  claim  exists,  and  the 
a  deed,  or  color  of  title,  serves  to  define  specifically  the  boundaries  of 
the  claim  or  possession.  If  the  occupation  is  not  of  a  character  to 
indicate  a  claim  which  may  be  co-extensive  with  the  limits  of  the 
deed,  then  the  principle  that  the  party  is  presumed  to  enter  adversely 
according  to  his  title,  has  no  sound  application,  and  the  adverse  pos- 
session may  be  limited  to  the  actual  occupation. 

Thus  cutting  wood  and  timber,  connected  with  permanent  improve- 
ments, may  well  furnish  evidence  of  notice  that  the  claim  of  title 
extends  beyond  the  permanent  improvements,  and  the  deed  be  ad- 
mitted to  define  the  precise  limits  of  the  claim  and  possession,  pro- 
vided the  cutting  was  of  a  character  to  indicate  that  the  claim  ex- 
tended, or  might  extend,  to  the  lines  of  the  deed.  It  might,  at  least, 
well  indicate  a  claim  to  the  whole  of  a  tract  allotted  for  sale  and  set- 
tlement, of  which  the  party  was  improving  part,  unless  there  was 
something  to  limit  the  presumption.  But  no  presumption  of  a  claim, 
and  of  color  of  title  beyond  the  actual  occupation,  could  arise  respect- 
ing other  lots  than  that  of  which  the  party  was  in  possession.  And 
v/here  the  possession  was  in  a  township,  or  other  large  tract  of  land, 
w^hich  had  never  been  divided  into  lots  for  settlement,  no  particular 
claim,  beyond  the  actual  occupation,  would  be  indicated,  and  of 
course  no  notice  of  any  such  claim  of  title  should  be  presumed.  6 
Cowen's  R.  617,  Jackson  v.  Richards;  15  Wend.  R.  597,  Sharp  v. 
Brandon. 

If  the  possession  was  not  of  a  character  to  indicate  ownership,  and 
to  give  notice  to  the  owners  of  an  adverse  claim,  although  the  grantee 
might  be  held  to  be  in  possession  according  to  his  title,  in  a  contro- 
versy with  one  who  should  make  a  subsequent  entry  without  right, 
his  possession  ought  not  to  be  held  adverse  to  the  true  owner,  to  the 
extent  of  his  deed,  merely  by  reason  of  the  deed  itself,  even  if  re- 
corded, nor  by  any  entry  under  it.  There  are  several  cases  which 
tend  to  sustain  this  view  of  the  principle.  6  Pick.  R.  172,  176, 
Poignard  v.  Smith;  13  Maine  R.  178,  Alden  v.  Gilmore;  4  Mass.  R. 
415,  Prop'rs  of  Kenneheck  Purchase  v.  Springer;  4  Vermont  R.  155, 
Hapgood  v.  Biirt;  1  Peters'  R.  41,  Ewing  v.  Burnet;  2  Greenl.  176, 
Little  V.  Megquier. 


SECT.    l]  BAILEY    V.    CARLETON  75 

We  are  of  opinion  that  the  rule  cannot  apply  to  a  case  where  a 
party,  having  a  deed  v/hich  embraces  land  to  which  his  grantor  had 
good  title,  and  other  land  to  which  ho  had  no  riglit,  enters  into  and 
possesses  that  portion  of  the  land  which  his  grantor  owned,  but  makes 
no  entry  into  that  part  which  he  could  not  lawfully  convey.  There 
is  no  notice  in  such  case  to  the  owner  of  the  land  thus  embraced 
in  the  deed,  and  no  possession  which  can  be  deemed  adverse  to  him. 
If  it  may  be  said  that  the  color  of  title  gives  such  a  constructive 
seisin  and  possession  that  the  grantee  could  maintain  trespass  against 
any  person  who  did  not  show  a  better  right,  (that  is,  a  title,  or  prior 
possession,)  there  is  nothing  in  the  nature  of  it  which  can  give  it  the 
character  of  a  disseisin,  or  possession  adverse  to  the  true  owner,  so 
as  to  bind  him.  For  that  purpose,  there  must  be  actual  possession 
of  some  portion  of  the  land  of  such  owner,  and  that  of  a  nature  to 
give  notice  of  an  adverse  claim. 

It  is  not  necessary  to  settle  whether  an  entry  into  an  enclosed  lot, 
under  a  deed  purporting  to  convey  unenclosed  lands  adjoining,  be- 
longing to  the  same  person,  would  operate  as  a  disseisin  of  the  latter. 
Where  two  separate  lots,  included  in  the  same  deed,  belong  to  dif- 
ferent owners,  an  entry  into  one  can  in  no  way  operate  as  a  disseisin 
in  relation  to  the  other. 

The  entry  into  the  house  lot,  therefore,  to  which  Amos  Town,  Avho 
conveyed,  had  title,  was  no  disseisin  of  Solomon  Town,  who  had 
title  to  the  lot  unenclosed,  on  the  other  side  of  the  road. 

The  next  question  is,  what  entry  into  the  land  itself  is  sufficient. 

Here  was  an  entry  in  1821,  upon  the  tract  in  dispute,  and  a  pos- 
session, by  placing  a  building  on  it,  by  Ebenezer  Carleton,  the  grantor 
of  the  defendants.  This  was,  without  doubt,  an  act  of  ownership. 
The  character  of  it  was  adverse  to  the  title  of  Solomon  Town,  and  it 
was  of  a  nature  to  give  notice  that  Carleton  claimed  title  to  that 
land. 

But  the  possession  before  that  time  was  of  a  more  ambiguous 
character. 

Ebenezer  Carleton,  to  whom  the  conveyance  was  made  in  1815, 
made  no  entry  or  use  of  the  lot  up  to  1821,  except  by  laying  lumber 
upon  it,  or  placing  farming  utensils  there.  Those  acts  by  one  having 
a  deed,  if  nothing  further  was  shown,  might  be  held  to  be  a  sufficient 
entry  and  possession  to  operate  as  a  disseisin  of  Solomon  Town.  But 
it  appeared  that  so  far  as  the  laying  of  lumber  on  the  lot  was  con- 
cerned, this  was  no  more  than  Carleton,  ainl  divers  other  persons, 
had  been  in  the  habit  of  doing  before,  and  that  others  continued  to 
do  the  same  afterwards.  Those  acts,  prior  to  1815,  were  done  by 
him,  and  others,  without  claim  of  title,  and  of  course  in  subservience 
to  the  title  of  the  true  owner.  If  not  acknowledged  trespasses,  they 
must  have  been  under  a  license  from  Solomon  Town.  The  same 
acts  continued  after  a  deed  of  other  lands,  by  a  person  having  good 
title  to  those  lands,  could  not  oi)erate  as  any  notice  to  the  owner  of 


76  JACKSON    fl.    HASBROUCK    V.    VERMILYEA       [CHAP.    II 

this  tract,  that  a  deed  had  boon  made  covering  his  laud  also,  and 
that  there  was  an  occnpation  under  that  deed,  or  under  any  claim 
of  right  to  occupy  adversely  to  him.  The  additional  act  of  leaving 
farming  tools  on  the  land  docs  not  seem  to  change  the  character  of 
the  possession. 

It  v^^as  not,  therefore,  until  1821,  when  the  building  was  removed 
on  to  the  land,  that  any  entry ^ was  made  upon  it  by  Carleton,  from 
which  Solomon  Town,  with  knowledge  of  the  entry,  should  have 
understood  that  Carleton  made  any  claim  to  the  ownership  of  the 
lot;  and  until  that  time,  therefore,  there  was  nothing  from  which 
an  ouster  can  be  inferred,  and  no  possession  by  him  that  can  be 
deemed  adverse  except  at  the  election  of  the  owner.  21  Pick.  140, 
Magoun  v.  Lapham;  13  Maine,  336,  Thomas  v.  Patten. 

Judgment  for  the  plaintiff} 


JACKSON  d.  HASBROUCK  v.  VERMILYEA 
6  Cowen  (N.  Y.)  677.     1827. 

Ejectment  for  twenty-five  acres  of  land,  including  a  grist  mill  in 
Middletown,  Delaware  County,  tried  at  the  circuit  in  that  county, 
September  1st,  1823,  before  Nelson,  C.  J.,  when  a  verdict  was  taken 
for  the  plaintiff,  subject  to  the  opinion  of  this  court,  on  a  case. 

1  Kentucky  Coal  Co.  v.  Kentucky  Union  Co.,  214  F.  R.  590,  623;  Henry 
V.  Brown,  143  Ala.  446;  Marietta  Co.  v.  Blair,  173  Ala.  524;  Hardie  v.  In- 
vestment Co.,  81  Ark.  141;  Kimball  v.  Stormer,  65  Cal.  116;  Wheatley  v. 
San  Pedro  R.  R.  Co.,  169  Cal.  505;  Gracy  v.  Fieldina,  71  Fla.  1:  Tennis 
Coal  Co.  V.  Sackett,  172  Ky.  729;  Walsh  v.  Wheelright,  96  Me.  174;  Turner 
V.  Stephenson,  72  Mich.  409;  Leavenworth  v.  Reeves,  106  Miss.  722;  Schmitt 
V.  Traphagon,  73  N.  J.  Eq.  399;  Lemis  v.  Covington,  130  N.  C.  541;  Hole 
V.  Rittenhouse,  25  Pa.  491;  Word  v.  Box,  66  Tex.  596,  accord. 

Land  in  actual  possession  must  adjoin  that  of  which  constructive  posses- 
sion is  claimed.  Brown  v.  Bocquin,  57  Ark.  97;  Georgia  Investment  Co.  v. 
Holton,  94  Ga.  551;  Stephenson  v.  Doe,  8  Blackf.  (Ind.)  508;  Louisville 
Property  Co.  v.  Lawson,  156  Ky.  288;  Parsons  v.  Oils,  172  Ky.  774;  Wilson 
V.  McEwan,  7  Oreg.  87.  And  see  Griffin  v.  Lane,  90  Ga.  224;  Roioe  v.  Hen- 
derson Naval  Co.,  143  Ga.  756;  Dills  v.  Hubbard,  21  111.  328;  Parsons  v. 
Dills,  159  Ky.  471,  172  Ky.  774;  Hornblower  v.  Banton,  103  Me.  375;  Morris 
v.  McClary^ AZ  Minn.  346;  Brougher  v.  Stone,  72  Miss.  647;  Loftin  v.  Cobb, 
1  Jones  Law  (N.  C.)  406;  Willimette  Co.  v.  Hcndrir,  28  Oreg.  485;  Camp  v. 
Riddle,  128  Tenn.  294;  Montgomery  v.  Gunther,  81  Tex.  320;  Webb  v.  Rich- 
ardson, 42  Vt.  465;  Roller  v.  Armentrout,  118  Va.  173. 

In  order  to  avail  himself  of  the  doctrine  of  constructive  adverse  posses- 
sion the  claimant  must  have  an  honest  belief  in  the  validity  of  his  title. 
Gregg  v.  Sayre,  8  Pet.  (U.  S.)  244;  Walsh  v.  Hill,  38  Cal.  481;  Reay  v.  Butler, 
95  Cal.  206-  Lee  v.  O'Quin,  103  Ga.  535;  Godfrey  v.  Diron  Power  Co.,  228 
111.  487;  Sm.ith  v.  Young,  89  Iowa  338;  State  v.  King,  77  W.  Va.  37.  And  see 
Miller  v.  Rich,  204  111.  444;  Foulke  v.  Bond,  41  N.  J.  L.  527;  and  statutes 
ante  p  29  note.  But  compare  Crowder  v.  Tenn.  C.  I.  &  R.  R.  Co.,  162 
Ala.'l51,  158;  Humbert  v.  Tnnity  Church,  24  Wend.  (N.  Y.)  587,  and  note  m 
23  Harv.  L.  Rev.  56. 


SECT.    l]  JACKSON    cl.    HASBROUCK    V.    VERMILYEA  77 

WooDwoRTH,  J.  The  plaintiff  claimed  title  as  the  assignee  of  a 
mortgage,  executed  by  Noah  Ellis  to  Philip  Sickler,  dated  Oct.  5, 
1811. 

The  premises  described,  contained  twenty-five  acres;  and  included 
part  of  a  grist  mill  in  possession  of  the  defendant.  It  appeared  that 
Ellis  was  in  possession  of  the  premises  at  the  date  of  the  mortgage, 
by  virtue  of  a  lease  from  Gen.  Armstrong  to  him,  and  continued  in 
possession  for  several  years  thereafter,  when  he  surrendered  to  the 
mortgagee. 

The  defendant  disclaimed  having  possession  of  any  part  of  the 
twenty-five  acres,  excepting  the  mill  and  mill  site.  He  read  in  evi- 
dence a  lease  from  Armstrong  to  Andrew  Sickler,  dated  Oct.  10,  1818, 
for  the  mill  and  mill  site,  and  twenty-five  acres  of  land,  being  the 
premises  in  question;  which  lease  was  assigned  to  the  defendant.  A 
lease  from  Armstrong  to  Ellis,  dated  May  1,  1802,  was  given  in  evi- 
dence by  the  plaintiff.  It  was  admitted  to  have  lately  come  from  the 
hands  of  Armstrong.  The  signatures  were  erased,  and  the  seals  torn 
off.  A  corner  of  the  lease  with  part  of  the  description  of  the  prem- 
ises was  also  torn  off. 

By  the  case,  the  lease  was  to  be  produced  on  the  argument ;  it  has 
not  been  delivered  to  me.  I  am,  therefore,  unable  to  say,  whether  it 
contained  any  reservation  of  part  of  the  premises.  This  fact  is  then 
to  be  ascertained  by  the  testimony  of  Ellis,  which  was  not  objected  to. 
He  says  the  lease  was  in  his  possession,  when  the  mortgage  was  given ; 
that  the  corner  was  torn  off  accidentally;  that  the  seals  remained  on 
as  long  as  he  held  it.  The  description  of  the  premises  included  a 
part  of  the  mill.  Ellis  also  testified,  that  he  did  not  know  that  the 
defendant  had  ever  been  in  the  actual  occupation  of  any  part  of  the 
premises,  excepting  the  mill  and  pond.  He  could  not  say  from  recol- 
lection, but  he  believed  the  lease  contained  an  exception  of  mill  sites, 
from  the  circumstances  of  his  obtaining  permission  from  Armstrong 
to  build  the  mill;  and  from  knowing  that  mill  sites  were  excepted  in 
all  his  leases.  The  witness  never  claimed  the  mill  site  under  his 
lease.  On  this  state  of  facts,  I  think  we  are  to  consider,  that,  in  the 
lease  to  Ellis,  the  mill  site  was  excepted.  I  presume  by  inspection 
of  the  lease,  it  cannot  be  determined  whether  excepted  or  not.  This, 
however,  is  not  expressly  stated.  I  apprelicnd  tliat  neither  party 
would  be  disposed  to  rest  on  parol  testimony,  as  to  the  contents,  unless 
the  lease  had  been  defaced,  or  a  ])art  of  it  destroyed. 

On  this  statement,  the  plaintiff  nuide  out  a  title  to  recover  the 
twenty-five  acres,  excepting  so  much  as  was  comprehended  within 
the  mill  site  reserved ;  ])rovided  the  defendant  was  in  possession  of 
the  land  not  included  in  the  mill  site.  He  admitted  he  had  posses- 
sion of  a  part,  (the  mill  and  mill  site.)  not  exceeding  tAVO  acres. 
The  plaintiff  oflVrcd  no  fcsfiinony  as  to  the  extent  of  the  defendant's 
actual  occupancy;  but  contends  that,  as  .Vrmstrong  conveyed  to  the 
person  under  whom  the  defendant  derives  title,  the  whole  twenty- 


78  JACKSON    (1.    HASBROUCK    V.    VERMILYKA       |  CHAP.    II 

five  acres,  the  defendant  is  to  be  considered  as  the  possessor  to  that 
extent. 

It  appears  that  the  premises  are  woodland.  There  are  no  im- 
provements. The  right  of'  Ellis  passed  to  the  plaintiff  by  virtue  of 
the  mortgage.  The  land  has  never  been  actually  occupied :  but  it 
will  be  recollected  that  the  lease  to  Ellis  contained  sixty-three  acres, 
of  which  the  twenty-five  acres  mortgaged,  were  parcel;  that  Ellis 
^actually  occupied  a  part  of  the  sixty-three  acres,  and  claimed  title 
to  the  whole ;  so  that,  although  the  twenty-five  acres  were  unimproved, 
lie  had  a  good  adverse  possession  to  the  whole,  on  the  ground  of  occu- 
pancy of  a  part,  and  a  lease  including  the  sixty-three  acres.  The 
conveyance  obtained  from  Armstrong  in  1818,  although  it  includes 
the  twenty-five  acres,  conferred  no  title  to  anything  but  the  mill 
site;  neither  can  it  operate  so  as  to  transfer  to  the  defendant  a  con- 
structive possession  of  tlie  twenty-five  acres,  in  consequence  of  his 
having  possession  of  the  small  parcel  comprising  the  mill  site. 

I  think  the  defendant  must  be  considered  as  claiming  title  to  the 
twenty-five  acres;  having  accepted  an  assignment  of  the  lease  which 
comprised  them. 

Color  of  title  under  a  deed,  and  occupancy  of  a  part,  is  sufficient 
proof  to  constitute  an  adverse  possession  to  a  single  lot.  (1  Cowen, 
286.)  This  principle  applies  only  to  cases  w^here  there  is  no  actual 
occupancy  under  a  different  claim.  Thus,  if  A.  takes  a  lease  or 
conveyance  for  a  lot  of  sixty-three  acres,  and  improves  a  part,  his 
possession  is  valid  for  the  whole  lot;  not  on  the  ground  of  having 
title,  which  draws  the  possession  after  it,  until  an  actual  adverse 
possession  commences;  but  on  the  ground  of  a  claim  of  title  to  the 
whole,  and  a  possession  of  part,  which  constitutes  a  good  adverse  pos- 
session. When  a  valid  possession  is  acquired  in  the  latter  mode,  it 
cannot  be  defeated  by  a  subsequent  entry  on  the  same  lot,  making 
an  improvement  of  a  part,  and  obtaining  title  to  the  whole.  The 
effect  of  such  subsequent  entry  would  be,  to  give  the  person  so  enter- 
ing, a  possession  of  the  part  actually  occupied  and  improved;  but  no 
farther.  A  constructive  possession  to  the  unimproved  part  of  the  lot, 
would  remain  in  him  who  made  the  first  entry  under  claim  of  title, 
and   improved   a  part.^     Apply  this   princij^le  to  the  present   case. 

1  And  see  Ralph  v.  Bayley,  11  Vt.  521;  Wilson  v.  Braden,  48  W.  Va.  196; 
Robinson  v.  Lowe,  66  W.  Va.  665. 

The  actual  possession  of  the  true  owner  of  part  of  his  land  prevents  the 
adverse  possessor  from  claiming  by  constructive  possession  land  not  occu- 
pied by  either.  The  constructive  possession  of  the  true  owner  prevails. 
Hunnicutt  v.  Peyton,  102  U.  S.  333,  369;  Parrish  v.  Foreman-Blades  Co.,  217 
F.  R.  335;  Sem-ple  v.  Cook,  50  Cal.  26;  Wilkins  v.  Pensacola  City  Co.,  36 
•  Fla.  36;  Hopson  v.  Cunningham,  161  Ky.  160;  Steams  Coal  Co.  v.  Boyatt, 
168  Ky.  Ill;  Schlossnagle  v.  Kolb,  97  Md.  285;  Bellis  v.  Bellis,  122  Mass.  414; 
Bradley  v.  West,  60  Mo.  33;  Schmitt  v.  Traphagen,  73  N.  J.  Eq.  399;  Simp- 
son V.  Downing,  23  Wend.  (N.  Y.)  316;  Renneker  v.  Warren,  17  S.  C.  139; 
Claiborne  v.  Elkins,  79  Tex.  380;  Silsby  v.  Kinsley,  89  Vt.  263;  Fry  v.  Stowers, 
98  Va.  417.    See   Harriss   v.  Howard,   126   Ga.   325;    Georgia,   Annot.    Code 


SECT.    l]  JACKSON    cl.    HASBROUCK    V.    VERMILYEA  79 

The  possession  under  Ellis,  of  the  twenty-five  acres,  was  not  im- 
paired by  the  assignment  of  the  lease  of  1818  to  the  defendant,  and 
occupation  of  the  mill  by  him.  it  appears  that  Ellis  never  claimed 
the  mill  site."  The  consequence  is,  that  the  defendant  was  not  in 
possession  of  the  twenty-five  acres,  except  that  part  thereof  which 
constituted  the  mill  site;  and  for  that  portion  the  plaintiff  is  not 
entitled  to  recover. 

Neither  can  he  recover  that  part  which  is  covered  by  a  part  of  the 
mill  and  the  pond,  supposed  to  contain  not  more  than  two  acres; 
because  Armstrong,  having  reserved  mill  sites  in  his  lease  to  Ellis, 
afterwards  granted  the  same  by  a  conveyance  under  which  the  de- 
fendant claims.  And  although  there  is  no  specific  description  of  the 
quantity  of  land  reserved,  it  must  be  intended  to  include  so  much  as 
might  reasonably  be  required  for  the  purpose  of  erecting  and  carry- 
ing on  the  business  of  a  mill.  The  defendant  has  located  and  entered 
upon  a  small  parcel  for  that  purpose;  which  the  facts  in  the  case  do 
not  enable  me  to  say  was  unreasonable  or  too  extensive.  It  is  con- 
tended that  the  reservation  was  merely  an  easement  or  privilege; 
but  this  is  evidently  a  mistake.  A  mill  site  is  reserved,  which  is  a 
reservation  of  so  much  land  as  may  be  necessary  for  the  purpose  of 
erecting  and  working  a  mill.  The  plaintiff  has  not  shown  how  much 
land  the  defendant  actually  occupies  as  a  mill  site.  The  defendant 
admits  the  quantity  of  two  acres.  Under  his  grant,  he  must  be  con- 
sidered as  having  located  this  parcel,  as  appurtenant  and  necessary 
to  the  mill.  There  is  nothing  in  the  case  to  show  that  this  was  too 
extensive.  It  is  not  material,  whether  the  location  was  made  before 
or  after  the  execution  of  the  mortgage;  for  if  the  mill  site  was  re- 
served, no  right  to  it  Avas  acquired  by  the  mortgage;  and  the  defend- 
ant might  actually  enter  on,  and  locate  the  premises,  as  well  after 
as  before. 

I  am,  therefore,  of  opinion  that,  as  to  the  mill  site  on  which  the 
mill  was  erected,  the  defendant  has  shown  title ;  and  as  to  the  twenty- 
five  acres  of  woodland,  the  defendant  was  not,  in  judgment  of  law, 
the  possessor.     Consequently  the  defendant  is  entitled  to  judgment. 

Judgment  for  the  defendant. 


(1914),  §  4166;  Farrar  v.  Eastman,  10  Me.  191.  Contra,  Currie  v.  Gilchrist, 
147  N.  C.  648;  Simmons  v.  Defiayice  Fox  Co.,  153  N.  C.  257. 

It  is  immaterial  whether  the  constructive  possession  of  the  adverse  pos- 
sessor began  before  or  after  that  of  the  true  owner.  Hunnicutt  v.  Cook,  102 
U.  S.  333,  369;  Scmple  v.  Cook,  50  Cal.  26;  Alfemm  v.  Long.  4  Pa.  254; 
Sequatchie  Coal  Co.  v.  Tennessee  Coal  Co.,  131  Tenn.  221;  Combes  v. 
Stringer,  106  Tex.  427.  But  see  Richie  v.  Owsley,  143  Ky.  1 ;  Miniard  v. 
Napier,  167  Ky.  208;  Elliott  v.  Henslcy.  ISS  Kv.  444;  Stnl'l  v.  Rich,  Co..  92 
Va.  253;  Garrett  v.  Rummy,  26  W.  Va.  345.  360. 

Tacking  of  constructive  adverse  possessions.  Kendrick  v.  Latham.  25 
Fla.  819;  Watts  v.  Parker,  27  III.  224;  Barger  v.  Hohbs.  67  111.  502.  507; 
Cri.^pen  v.  Hanavan,  50  Mo  536,  549;  Simp.-ion  v.  Doicning.  23  Wend.  (X.  Y.) 
316. 


80  DOE    d.    CARTER    V.    BARNARD  [CHAP.    II 


E.     Tackinq  Interests.  ,  ^^-^ 

DOE  d.  CARTER  v.  BARNARD     ' 

13  Q.  B.  945.     1849. 

Ejectment  for  a  cottage  iii,  Essex.     Demise,  13  May,  1848. 

On  the  trial  before  CoHman,  J.,  at  the  Essex  Summer  Assizes, 
1848,  it  appeared  from  the  evidence  given  for  the  lessor  of  the  plain- 
tiff that  in  1815  one  Robert  Carter  purchased  the  premises  and  was 
let  into  possession;  but  as  he  did  not  pay  all  the  purchase-money 
until  1824,  no  conversance  was  executed  till  that  time.  Robert  Carter, 
immediately  after  his  purchase  in  1815,  allowed  his  son  John  to 
occupy  the  premises  rent  free  as  tenant  at  will;  and  he  continued 
so  to  occupy  until  1834,  when  he  died,  leaving  a  widow,  who  was 
the  lessor  of  the  plaintiff,  and  a  son  and  other  children.  Robert 
Carter,  the  father,  was.  at  that  time  still  living.  The  lessor  of  the 
plaintiff  had  occupied  from  the  time  of  her  husband's  death  until  a 
short  time  before  the  present  action  was  brought.  The  defendant 
claimed  under  a  mortgage  made  by  Robert  Carter  in  1829.  For 
the  defendant  it  was  contended  that  assuming  a  title  to  have  been 
shown  in  John  Carter,  the  lessor  of  the  plaintiff  could  not  recover. 
The  learned  judge  directed  a  verdict  for  the  plaintiff,  and  reserved 
leave  to  the  defendant  to  move  to  enter  a  nonsuit.^ 

Cur.  adv.  vult. 

Patteson,  J.,  noAv  delivered  the  judgment  of  the  court. 

The  lessor  of  the  plaintiff  proved  no  title,  but  relied  on  long  pos- 
session: viz.  her  own  for  thirteen  years,  and  her  husband's  before 
her  for  eighteen  years ;  but  in  so  doing  she  showed  that  her  husband 
left  several  children,  one  of  whom  was  called  as  a  witness.  If  the 
husband's  possession  raised  a  presumption  that  he  was  seised  in  fee, 
that  fee  must  have  descended  on  his  child,  and  of  course  the  lessor  of 
the  plaintiff  must  fail.  But  she  contends  that  because  the  husband's 
possession  was  for  less  than  twenty  years,  no  presumption  of  a  seisin 
in  fee  arises;  that  she  is  entitled  to  tack  on  her  own  possession  to  his; 
and  then  that  the  34th  section  of  Stat.  3  &  4  W.  4,  c.  27,  which  enacts 
"  that  at  the  determination  of  the  period  limited  by  this  Act  to  any 
person  for  making  an  entry  or  distress,  or  bringing  any  writ  of  quare 
impedit  or  other  action  or  suit,  the  right  and  title  of  such  person 
to  the  land,  rent,  or  advowson  for  the  recovery  whereof  such  entry, 
distress,  action,  or  suit  respectively  might  have  been  made  or  brought 
within  such  period,  shall  be  extinguished,"  has  put  an  end  to  the 
right  and  title  of  all  persons,  and  transferred  the  estate  to  her.  If 
she  had  been  defendant  in  an  action  of  ejectment,  no  doubt  the  non- 
possession  of  the  lessor  of  the  plaintiff,  evidenced  by  her  husband's 
1  Argued  before  Lord  Dbnman,  C.  J.,  Patteson,  Coleridge,  and  Erle,  JJ. 


SECT.    l]  DOE    d.    CARTER    V.    BARNARD  81 

and  her  own  consecutive  possession  for  more  than  twenty  years, 
would  have  entitled  her  to  the  verdict  on  the  words  of  the  2d  section 
of  the  Act,  without  the  aid  of  the  34th  section/  Therefore  it  is 
said  that  the  34tli  section  must  have  some  further  meaning,  and  must 
transfer  the  right.  Probably  that  would  be  so  if  the  same  person, 
or  several  persons,  claiming  one  from  the  other  by  descent,  will,  or 
conveyance,  had  been  in  possession  for  the  twenty  years.  But  this 
lessor  of  the  plaintiff  showed  nothing  to  connect  her  possession  with 
that  of  her  husband  by  right  of  any  sort;  and  if  she  be  right  in  her 
construction  of  the  34th  section,  the  same  consequence  would  follow 
if  twenty  persons  unconnected  with  each  other  had  been  in  possession, 
each  for  one  year,  consecutively  for  twenty  years;  yet  it  would  be 
impossible  to  say  to  which  of  the  twenty  persons  the  34th  section  has 
transferred  the  title.  "Without  the  aid  of  this  Statute,  twenty  years' 
possession  gave  a  prima  facie  title  against  every  one,  and  a  complete 
title  against  a  wrongdoer  who  could  not  show  any  right,  even  if  such 
wrongdoer  had  been  in  possession  many  years;  provided  they  Avere 
less  than  twenty :  Doe  dem.  Harding  v.  Coohe,  7  Bing.  346 ;  and  the 
effect  of  the  34th  section  would  probably  be  to  give  the  right  to  the 
possessor  for  twenty  years,  even  against  the  party  in  whom  the  legal 
estate  formerly  was,  and,  but  for  the  Act,  would  still  be,  Avhere  he 
had  not  obtained  the  possession  till  after  the  twenty  years;  but  then 
we  apprehend,  as  before  stated,  that  such  twenty  years'  possession 
must  be  either  by  the  same  person  or  several  persons  claiming  one 
from  the  other,  Avhich  is  not  the  case  here. 

The  lessor  of  the  plaintiff  must^  therefore  rely  on  lier  own  ])0sses- 
sion  for  thirteen  years  as  sufficient  against  the  defendant,  who  has 
turned  her  out  and  shows  no  title  himself.  According  to  the  case  of 
Doe  dem.  Hughes  v.  Dyball,  Moo.  &  M.  346,  that  possession  for  thir- 
teen years  would  be  sufficient;  for  in  tliat  case  tlie  lessor  of  the  plain- 

1  So,  Doc  d.  Goody  v.  Carter,  9  Q.  B.  863. 

Stat.  3  &  4  Wm.  IV,  c.  27,  §§  2,  7,  provided  as  follows:  "  II.  And  be  it 
further  enacted,  that  after  the  31st  daj^  of  December,  1833,  no  person  shall 
make  an  entry  or  distress,  or  bring  an  action  to  recover  any  land  or  rent  but 
within  twenty  years  next  after  the  time  at  which  the  right  to  make  such 
entry  or  distress,  or  to  bring  such  action  shall  have  first  accrued  to  some 
person  through  whom  he  claims;  or  if  such  right  .^hall  not  have  accrued  Jo 
any  person  through  whom  he  claims,  then  within  twenty  years  next  after  the 
time  at  which  the  right  to  make  such  entry  or  distress  or  to  bring  such 
action  shall  have  first  accrued  to  the  person  making  or  bringing  the  same. 

"  VII.  And  be  it  further  enacted,  that  when  any  person  shall  be  in  posses- 
sion or  in  receipt  of  the  profits  of  any  hmd,  or  in  receipt  of  any  rent,  as 
tenant  at  will,  the  right  of  the  person  entitled  subject  thereto,  or  of  the  per- 
son through  whom  h(>  claims,  to  make  an  entry  or  distress  or  bring  an  action 
to  recover  such  land  or  rent,  shall  be  deemed  to  have  first  accrued,  either  at 
the  determination  of  such  tenancy  or  at  the  expiration  of  one  year  next  after 
the  commencement  of  such  tenancy,  at  which  time  such  tenancy  shall  be 
deemed  to  have  determined;  provided  always,  that  no  mortgagor  or  cestui 
que  triifit  shall  be  deemed  to  be  a  tenant  at  will,  within  the  meaning  of  this 
clause,  to  his  mortgagee  or  trustee." 


82  FANNING    V.    WILLCOX  [CHAP.    II 

tiff  showed  only  one  year's  possession,  and  yet  Lord  Tcntcirden  said, 
"  That  does  not  signify;  tliere  is  ample  proof;  the  plaintiff  is  in  pos- 
session, and  you  come  and  turn  him  out:  you  must  show  your  title." 
See  also  Doe  dem.  Humphrey  v.  Martin,  Car.  &  Marsh.  32.  These 
cases  would  have  warranted  us  in  saying  that  the  lessor  of  the 
plaintiff  had  established  her  case,  if  she  had  shown  nothing  but  her 
own  possession  for  thirteen  yeajs.  The  ground,  however,  of  so  say- 
ing, would  not  be  that  possession  alone  is  sufficient  in  ejectment  (as 
it  is  in  trespass)  to  maintain  the  action,  but  that  such  possession  is 
prima  facie  evidence  of  title,  and,  no  other  interest  appearing  in 
proof,  evidence  of  seisin  in  fee.  Here,  however,  the  lessor  of  the 
plaintiff  did  more,  for  she  proved  the  possession  of  her  husband  be- 
fore her  for  eighteen  years,  which  was  prima  facie  evidence  of  his 
seisin  in  fee;  and,  as  he  died  in  possession  and  left  children,  it  was 
prima  facie  evidence  of  the  title  of  his  heir,  against  which  the  lessor 
,  of  the  plaintiff's  possession  for  thirteen  years  could  not  prevail ;  and 
therefore  she  has  by  her  own  showing  proved  the  title  to  be  in 
another,  of  which  the  defendant  is  entitled  to  take  advantage.  On 
this  ground  we  think  that  the  rule  for  a  nonsuit  must  be  made 
absolute.  Rule  absolute  for  a  nonsuits 


FANNING  V.  WILLCOX 

3  Day  (Conn.)  258.     1808. 

Motion  for  a  new  trial. 

This  was  an  action  of  ejectment,  to  which  the  general  issue  was 
pleaded. 

On  the  trial,  the  plaintiff  claimed  the  land  in  question  as  devisee 
under  the  will  of  Thomas  Fanning,  deceased,  to  whom  it  had  been 
appraised  and  set  off  under  an  execution  against  Joseph  Noyes.  It 
was  admitted  that  the  plaintiff  had  a  good  and  legal  title,  unless 
barred  by  the  Statute  of  Limitations. 

The  defendants  were  in  possession  as  tenants  under  Nathaniel 
Palmer.  It  appeared  that  after  the  levy  of  Thomas  Fanning's  exe- 
cution," Noyes  continued  in  possession  until  within  fifteen  years  of 
the  time  of  bringing  this  action,  but  had  gained  no  title.  Nathaniel 
Palmer,  having  no  title,  then  commenced  an  action  of  ejectment 
against  Noyes  for  the  land.     Noyes  suffered  judgment  to  pass  against 

1  See  Peek  v.  Chever,  8  All.  (Mass.)  89;  Dixon  v.  Gayjcre,  17  Beav.  421, 
430;  Asher  v.  Whitlock,  L.  R.  1  Q.  B.  1 ;  Willis  v.  Earl  Howe,  [18931  2  Ch. 
545.  553;  Perry  v.  Clissold,  [19071  A.  C.  73;  Groom  v.  Blake,  6  Ir.  Com.  L. 
Rep.  400,  410;  Professor  J.  B.  Ames  in  3  Harv.  L    Rev.  323^325. 

-  It  is  not  expressly  stated  in  the  motion  that  the  levy  of  Fanning's  execu- 
tion took  place,  and  the  adverse  possession  of  Noyes  connnenced,  more  than 
fifteen  years  before  the  plaintiff  brought  his  action;  but  this  was  the  fact, 
and  the  case  proceeds  entirely  upon  the  supposition  of  its  existence.  —  Rep. 


SECT,    l]  FANNING    V.    WILLCOX  83 

him  by  default,  and  abandoned  the  land:  upon  which  Palmer  took 
possession,  without  the  levy  of  an  execution. 

The  court,  in  their  charge  to  the  jury,  instructed  them  that  if 
they  should  find  that  the  plaintiff's  record  title  was  complete,  and 
the  defendants,  or  those  under  whom  they  claim,  had  no  title  of 
record,  yet  the  law  was  so  that  if  any  other  person  had  been  in  pos- 
session of  the  land,  claiming  adversely  to  the  plaintiff's  title,  and  the 
possession  of  such  person,  together  with  the  possession  of  the  de- 
fendants, and  those  under  whom  they  claim,  amounted  to  a  period 
of  more  than  fifteen  years  previous  to  the  commencement  of  this 
action,  during  which  the  plaintiff  was  ousted  of  the  possession,  he 
was  not  entitled  to  recover.  The  jury  found  for  the  defendants; 
and  the  plaintiff  moved  for  a  new  trial,  which  motion  was  reserved 
for  the  opinion  of  the  nine  judges. 

By  the  Cotirt.^  Actual  ouster  and  adverse  possession  of  any 
lands,  tenements,  or  hereditaments,  for  fifeeen  years  after  the  title, 
or  cause  of  action  accrued,  and  before  suit  brought,  bars  the  plaintiff 
of  his  right  of  entry  thereafter,  whether  the  ouster  and  adverse  pos- 
session be  by  the  same  person  or  persons,  for  the  whole  term  of 
fifteen  years,  or  by  different  persons  for  different  periods,  making  <^ 
fifteen  years  in  the  whole;  provided  the  disseisin  and  adverse  pos- 
session have  been  continued  and  uninterrupted;  and  provided  that 
the  plaintiff  does  not  come  within  any  of  the  exceptions  mentioned 
in  the  provisos  of  the  Statute,  extending  the  term  of  time,  in  which 
entry  may  be  made.  New  trial  not  to  he  granted.^ 

1  Brainerd  and  Griswold,  JJ.,  having  been  concerned  as  counsel  in  this 
cause,  did  not  sit. 

-  ''  The  only  other  question  presented  by  the  case  is,  whether  the  statute 
of  limitation  was  a  bar  to  the  plaintiff's  reco\-ery.  It  appears  that  there  was 
a  continual  adverse  possession  for  more  than  twenty  years,  but  that  Hugh 
Shannon,  who  first  took  the  possession  of  the  land  in  controversy,  before  he 
had  remained  in  possession  twenty  years  surrendered  the  possession  to  the 
defendants  or  those  under  whom  they  held,  in  pursuance  of  a  decree  entered 
upon  an  award  giving  them  the  land  in  virtue  of  an  adverse  claim,  and  that 
they  had  not  had  the  land  in  possession  twenty  j-ears  prior  to  the  commence- 
ment of  this  suit. 

"  This  circumstance,  it  is  urged  on  the  part  of  the  plaintiff,  prevents  the 
statute  from  operating  as  a  bar  to  his  recovery.  But  we  cannot  perceive 
any  principle  upon  which  it  can  have  such  an  effect.  According  to  the  literal 
import  of  the  statute,  the  plaintiff  could  only  enter  upon  the  land  within 
twenty  years  after  his  right  of  entry  accrued,  and,  consequently,  an  ad- 
verse possession  for  that  length  of  time  will  toll  his  right.  Nor  can  it,  in 
the  reason  and  nature  of  the  thing,  produce  any  difference,  whether  the  pos- 
session be  held  uniformly  under  one  title  or  at  different  times  under  different 
titles,  provided  the  claim  of  title  be  always  adverse  to  that  of  the  plaintiff, 
nor  whether  the  possession  be  held  by  the  same  or  a  succession  of  individuals,  o 
provided  the  possession  be  a  continued  and  uninterrupted  one."  —  Slinnnon 
v.  Kinny,  1  A.  K.  Marsh.  (Ky.)  3,  4  (but  see  Winn  v.  Wilhite,  5  J.  J.  Mar.^h. 
(Ky.)  521,  .524;  Miniard  v.  Napier,  167  Ky.  208).  And  see  Davis  v.  Mc- 
Arthur,  78  N.  C.  357  (changed  by  statute.  North  Carolina.  Stats.  (1919), 
§  430;  May  v.  Mjg.  Co.,   164  N.C.  262,  265);   Scales  v.  Cuckrill,  3  Head 


84  OVERFIELD    V.    CHRISTIE  [CHAP.   II 

OVERFIELD  v.  CHRISTIE 

7  S.  &  R.  (Pa.)  173.     1821. 

Error  to  the  Court  of  Common  Pleas  of  Luzerne  County,  in  an 
ejectment  brought  by  Jacob  Overfield  against  Jerusha  Christie  and 
Hugh  Osterhout,  in  which  there^was  a  verdict  and  judgment  for  the 
defendants.^ 


(Tenn.)  432;  Kipp  v.  Sy7iod  of  Toronto,  33  U.  C.  Q.  B.  220;  Robinson  v. 
Osborne,  27  Ont.  L.  Rep.  248;  8  Dom.  L.  Rep.  1014  (but  see  Ryerse  v.  Teeter, 
44  U.  C.  Q.  B.  8;  Simmons  v.  Shipman,  15  Ont.  Rep.  301;  Hamel  v.  Ross, 
3  Dom.  L.  Rep.  860) ;  Salter  v.  Clarke,  4  N.  S.  W.  280;  10  Col.  L.  Rev.  761; 
3  Harv.  L.  Rev.  323-326.     Compare  Riopelle  v.  Gilman,  23  Mich.  33. 

"  No  privity  of  estate  was  shown,  and  if  that  was  necessary,  the  evidence 
was  improperly  admitted.  But  it  was  not  nece.ssary.  It  is  sufficient  if  there 
is  an  adverse  possession  continued  uninterruptedly  for  fifteen  years,  whether 
by  one  of  more  persons.  This  was  settled  in  Fanning  v.  Willcox,  3  Day,  258. 
Doubtless  the  possessions  must  be  connected  and  continuous,  so  that  the 
possession  of  the  true  owner  shall  not  constructively  intervene  between  them ; 
but  such  continuity  and  connection  may  be  effected  by  any  conveyance, 
agreement,  or  understanding  which  has  for  its  object  a  transfer  of  the  rights 
of  the  possessor,  or  of  his  possession,  and  is  accompanied  by  a  transfer  of 
possession  in  fact.  Such  an  agreement  to  sell  and  transfer  of  possession  as 
were  set  up  in  this  case,  if  proved,  were  sufficient."  Smith  v.  Chapin,  31 
Conn.  530,  531.    See  Ferriday  v.  Grosvenor,  86  Conn.  698. 

In  Sawyer  v.  Kendall,  10  (IJush.  (Mass.)  241,  the  court  said:  "The. general 
rules  of  law  respecting  successive  disseisins  are  well  settled.  To  make  a  dis- 
seisin effectual  to  give  title  under  it  to  a  second  disseisor,  it  must  appear  that 
the  latter  holds  the  estate  under  the  first  disseisor,  so  that  the  disseisin  of 
one  may  be  connected  with  that  of  the  other.  Separate  successive  disseisins 
do  not  aid  one  another,  where  several  persons  successively  enter  on  land  as 
disseisors,  without  any  conveyance  from  one  to  another,  or  any  privity  of 
estate  between  them,  other  than  that  derived  from  the  mere  possession 
of  the  estate;  their  several  consecutive  possessions  cannot  be  tacked,  so  as  to 
make  a  continuity  of  disseisin,  of  sufficient  length  of  time  to  bar  the  true 
owners  of  their  right  of  entry.  To  sustain  separate  successive  disseisins 
as  constituting  a  continuous  possession,  and  conferring  a  title  upon  the 
last  disseisor,  there  must  have  been  a  privity  of  estate  between  the 
several  successive  disseisors.  To  create  such  privity,-  there  must  have 
g  existed,  as  between  the  different  disseisors,  in  regard  to  the  estate  of 
which  a  title  by  disseisin  is  claimed,  some  such  relation  as  that  of  ancestor 
and  heir,  grantor  and  grantee,  or  devisor  and  devisee.  In  such  cases,  the 
title  acquired  b}'  disseisin  passes  by  descent,  deed,  or  devise.  But  if  there  is 
no  such  privity,  upon  the  determination  of  the  possession  of  each  disseisor, 
the  seisin  of  the  true  owner  revives  and  is  revested,  and  a  new  distinct  dis- 
seisin is  made  by  each  successive  chsseisor."  Doswell  v.  De  La  Lanza,  20 
How.  (U.  S.)  29,  32;  Robinson  v.  Allison,  124  Ala.  325;  San  Francisco  v. 
Fulde,  37  Cal.  349;  Ely  v.  Brown,  183  111.  575;  Doe  v.  Brown,  4  Ind.  143; 
Schrack  v.  Zubler,  34  Pa.  38;  Jackson  v.  Leonard,  9  Cow.  (N.  Y.)  653;  Ryan 
V.  Schwartz,  94  Wis.  403,  accord.  See  Georgia  Annot.  Code  (1914),  §§  4176- 
4178;  Sherin  v.  Brackett,  36  Minn.  152;  Vermont  Marble  Co.  v.  Eastman, 
91  Vt.  425,  452;  Illi7iois  Steel  Co.  v.  Budzisz,  106  Wis.  499,  507,  514;  Illinois 
Steel  Co.  V.  Paczocha,  139  Wis.  23,  28,  35. 

^  The  statement  of  facts  is  abbreviated  and  the  opinion  on  one  point 
only  is  given. 


SECT.    l]  OVERFIELD    V.    CHRISTIE  85 

The  plaintiff  gave  in  evidence  an  ai^plication  in  the  name  of 
Samuel  Lefevre,  dated  the  3d  April,  1769,  on  which  a  survey  -was 
made  4th  October,  1773,  and  a  patent  issued  to  Joseph  Wharton, 
17th  August,  1784.  On  the  7th  June,  1813,  Joseph  Wharton  con- 
veyed to  the  plaintiff,  in  consideration  of  122  dollars,  ."^0  cents. 

The  defendants  claimed  under  Nathan  Abbott,  who  made  a  settle- 
ment and  improvement  in  1788.  Abbott  sold  his  improvement  to 
Lazarus  Ellis,  who  sold  to  Peter  Osterhout,  deceased,  his  son-in-law, 
the  husband  of  Jerusha  Christie  (daughter  of  p]llis),  one  of  the  de- 
fendants, and  father  of  the  other  defendant,  Hugh  Osterhout. 

The  defendants  rested  their  defence  on  the  Act  of  Limitations. 
.  .  .  The  judge's  charge,  which  was  excepted  to  by  the  plaintiff, 
was  placed  on  the  record,  and  the  objections  to  it  were  now  reduced 
to  three  points.  .  .  . 

3.  That  he  ought  to  have  charged  that  Nathan  Abbott,  having 
entered  without  title,  was  a  trespasser,  and  so  were  all  those  avIio 
came  after  him;  and  consequently  no  continuity  of  possession, 
which  is  essential  where  one  defends  himself  solely  by  the  Act  of 
Limitations. 

The  opinion  of  the  Court  was  delivered  by 

TiLGHMAN,  C.  J.  ...  3.  As  to  privity  between  trespassers.     If 

one  enters  and  commits  a  trespass,  and  then  goes  off,  and  another 

comes  after  him,  and  commits  a  trespass,  I  grant  that  there  is  no 

privity  between  these  persons,  nor  can  the  possession  be  said  to  be 

transferred  and  continued  from  one  to  the  other. ^     But  I  cannot  see 

that  the  present  case  falls  within  that  principle.     Here  has  been  a 

possession  of  four  or  five  and  twenty  years,  transferred  in  the  two 

first  instances  for  a  valuable  consideration,  and  finally  transferred 

from   father   to   son.     Each    new   possessor    has    been    substantially 

connected  with  his  predecessor.     The  law  pays  great  regard  to  a 

possession  transmitted  from  father  to  son;   so  great,  indeed,  that 

where  there  was  a  disseisin  and  a  descent  to  the  heir  of  the  disseisor, 

the  entry  of  the  disseisee  was  at  common  law  taken  away.     Lord 

Mansfield  has  told   us  that  of  seisin  and   disseisin  very  little  was 

known  in  his  time  hut  the  name.     In  Pennsylvania  we  certainly  have 

not  been  in  the  habit  of  going  deeply  into  that  antiquated  subject; 

nor  is  it  material  to  inquire  whether  Abbott  or  those  who  came  after 

him  acquired   a  seisin  according  to  the  strict  import  of  the  term. 

Our  law  permits  all  persons,  whether  in  or  out  of  seisin  or  possession, 

to  transfer  their  claim,  such  as  it  is,  good  or  bad,  by  deed  or  will. 

And  I  have  no  manner  of  doubt  that  one  who  enters  as  a  trespasser, 

clears  land,  builds  a  house,  and  lives  in  it,  acquires  something  which 

he  may  transfer  to  another;  and  if  the  possession  of  the  two  added 

together,  amounts  to  twenty-one  years,  and  was  adverse  to  him  who 

had  the  legal  title,  the  Act  of  Limitations  will  be  a  bar  to  his  re- 

^  Pittsburgh  Ry.  v.  Pcct,  152  Pa.  488;  Agency  Co.  v.  Short,  13  An.  Cas. 
793. 


86  ERCK    V.    CHURCH  [CHAP.    II 

covery.  It  would  be  extraordinary  indeed  if  a  possession  acquired 
without  force  could  not  be  transferred,  when  we  hold  that  j^'^ior 
possessio)i  alone  is  r/ood  tille  to  recover  in  ejectment  against  all 
but  him  who  shows  better  title.  But  when  possession  has  been  con- 
tinued for  a  number  of  years,  and  has  passed  from  hand  to  hand  for 
valuable  consideration,  or  by  descent  from  parent  to  child,  it  has 
something  respectable  in  it.  The  argument  of  the  plaintiff  leads 
plainly  to  this  consequence,  —  that  the  Act  of  Limitations  can  never 
take  effect  in  favor  of  a  defective  title,  unless  one  man  lives  twenty- 
one  years;  because  every  one  who  enters  under  a  defective  title  is  a 
trespasser,  and  being  a  trespasser,  he  cannot,  according  to  the  doc- 
trine contended  for,  transfer  his  possession  to  another,  or  even 
transmit  it  by  descent  to  his  heir,  so  as  to  make  a  connected  continued 
possession.  If  that  be  the  case,  there  is  little  use  in  the  Act  of 
Limitations.  But  I  am  decidedly  of  opinion  that  the  law  is  not  so, 
and  that  it  was  well  laid  down  in  the  charge  of  the  Court  of  Common 
Pleas.     The   judgment   should    therefore    be    affirmed. 

Judgment  affirmed.^ 


ERCK  V.  CHURCH 
87  Tenn.  575.     1889. 

Appeal  from  Chancei-y  Court  of  Shelby  County.    B.  M.  Estes,  Ch. 

Ejectment  bill.  Decree  for  complainant.  Defendant  appealed. 
,  J.  M.  Dickinson,  Sp.  J.  Complainant  filed  this  bill  September 
25,  1886,  to  recover  possession  of  a  parcel  of  land  in  Memphis,  front- 
ing three  feet  and  ten  inches  on  Lauderdale  Street,  and  five  feet  seven 
and  one-half  inches  on  Humphries  Street,  being  three  hundred  and 
nine  feet  in  length. 

1  See  Ryan  v.  Bank,  219  S.  W.  (Mo.)  652;  Haynes  v.  Boardman,  119 
Mass.  414;  Streeter  v.  Fredrickson,  11  N.  D.  300;  North  Dakota,  Comp. 
Laws  (1913),  §  5471. 

Widow  in  possession  of  land  held  adversely  by  her  husband.  Robinson  v. 
Allison,  124  Ala.  325;  Johnson  v.  Johnson,  106  Ark.  9;  Sawyer  v.  Kendall, 
10  Cush.  (Mass.)  241;  Jacobs  v.  WiUia?ns,  173  N.  C.  276;  Doe  v.  Barnard, 
ante,  p.  80.  Compare  Peoples  Water  Co.  v.  Anderson,  170  Cal.  683;  Tuggle 
v.  Southern  Ry.  Co.,  140  Tenn.  275. 

Tacking  of  possessions  of  decedent  and  personal  representative.  Cannon 
V.  Prude,  181  Ala.  629;  Vanderbilt  v.  Chapman,  172  N.  C.  809;  Ea.st 
Tennessee  Iron  Co.  v.  Ferguson,  35  S.  W.  (Tenn.)  900. 

Tacking  of  oral  transfers.  Oliver  v.  Williams,  163  Ala.  376;  Wilhelm  v. 
Herron,  178  N.  W.  (Mich.)  769;  McNeely  v.  Lartgan,  22  Ohio  St.  32;  Vance 
v.  Wood,  22  Oreg.  77;  Cunningham,  v.  Patton,  6  Pa.  355,  357;  Illinois  Steel 
Co.  V.  Paczocha.  139  Wis.  23;  see  Erck  v.  Church. 

In  South  Carolina  it  has  been  held  that  an  heir  can  tack  to  his  possession 
that  of  his  ancestor.  Williams  v.  McAliley,  Chev.  (S.  C.)  200;  Epperson  v. 
Stansill,  64  S.  C.  485;  Goings  v.  Mitchell,  96  S.  E.  (S.  C.)  612;  but  a  pur- 
chaser cannot  tack  the  possession  of  his  vendor.  King  v.  Smith,  Rice  Law 
(S.  C.)  10. 


SECT,    l]  ERCK    V.    CHURCH  87 

It  is  admitted  that  coinpiaiuaiil  has  a  good  legal  title,  and  that  he 
has  a  right  to  recover,  unless  it  has  heen  defeated  by  the  operation  of 
the  statute  of  limitations. 

Mackall  sold  and  deeded  to  Warner  a  lot  contiguous  to  the  parcel 
in  dispute,  fronting  fifty  feet  on  Lauderdale  Street,  and  the  same 
width  on  Humphries  Street,  bounded  by  parallel  lines.  In  taking 
possession  Warner  did  not  measure  his  fifty  feet.  Mackall,  at  the 
time  Warner  purchased,  pointed  to  a  group  of  trees,  and  designated 
one  as  being  on  the  south  boundary  line  of  the  lot  sold.  Warner 
fenced  in  his  purchase,  and  placed  his  south  fence  along  the  line 
indicated,  believing  that  he  was  inclosing  the  parcel  purchased  of 
Mackall  and  no  more.  He,  in  fact,  inclosed  with  his  fifty  foot  lot 
the  parcel  in  dispute,  and  from  that  time  continued  to  hold  as  his 
own  the  entire  tract  included  by  his  fences. 

Warner  sold  to  defendant  Church  by  deed,  following  the  descrip- 
tion in  the  deed  from  Mackall  to  him,  which  embraced  the  fifty  feet, 
but  not  the  parcel  in  dispute,  and  Church  took  possession  of  the 
whole  tract  as  inclosed  by  Warner,  and  held  it  as  his  own. 

It  is  admitted  that  Church  has  not  held  seven  years,  but  that 
Warner  and  Church  together  have  held  more  than  seven  years. 
Complainant  contends  that  the  statute  of  limitation  has  not  operated 
for  these  reasons : 

First.  That  Warner  did  not  intend  to  inclose  any  ground  but  the 
fifty  feet  he  purchased;  that  he  took  possession  of  and  held  the  dis- 
puted parcel  by  mistake,  and  that,  therefore,  the  statute  was  not  set 
in  motion  because  an  essential  requisite,  namely,  an  intention  to  hold 
adversely,  did  not  exist. 

Second.  That  the  periods  of  possession  by  Warner  and  Church 
cannot  be  connected,  because  they  are  both  wrong-doers,  and  there 
is  no  privity  between  them.^ 

A  leading  case  in  this  State,  and  one  frequently  cited  by  jndges 
and  text-writers,  is  Marr  v.  Oilliam,  1  Cold.  491.  The  point, 
actually  decided,  was  that  the  possession  of  one  who  had  entered 
lawfully  upon  land  by  deed  as  a  tenant  in  common,  but  who  subse- 
quently began  to  hold  adversely  to  the  other  tenants  in  common, 
might  be  connected  with  that  of  his  heirs  so  as  to  make  out  the 
period  of  the  statute,  because  there  is  a  privity  of  estate  between 
ancestor  and  heir,  but  that  the  wife  of  such  first  possessor  could  not 
connect  her  possession  with  his  because  there  was  no  such  privity 
between  husband  and  wife.  Judge  Wright  (page  504)  thus  states 
the  law,  "  Separate  successive  disseizins  do  not  aid  one  another, 
where  s(>v(M'al  persons  successiv(dy  ent(>r  on  land  as  disseizors,  with- 

1  The  opinion  of  the  court  on  the  first  question  is  oniittod.  It  followed 
French  v.  Pearce,  8  Conn.  49.  Only  a  portion  of  the  opinion  on  the  second 
que.stion  is  given. 


88  ERCK    V.    CHURCH  [CHAP.   II 

out  any  conveyance  from  one  to  another,  or  any  privity  of  estate 
between  them,  other  than  that  derived  from  the  mere  possession  of 
the  estate.  Their  several  consecutive  possessions  cannot  be  tacked, 
so  as  to  make  a  continuity  of  disseizins  of  sufficient  length  of  time 
to  bar  the  true  ovi^ners  of  their  right  of  entry." 

On  pages  509-10  Judge  Wright  discusses  the  cases  of  Wallace  v. 
Hanniim,  1  Hum.  443 ;  Nory-is  v.  Ellis,  7  Hum.  463,  and  Crutinger  v. 
Catron,  10  Hum.  24,  and  criticises  as  dicta  the  statements  in  those 
opinions,  that  a  trespasser  by  mere  possession,  without  color  of  titles, 
acquires  no  right  that  is  either  alienable  or  descendible.  As  pre- 
viously stated,  Judge  Nicholson,  in  Baker  v.  Hale,  6  Baxt.  48,  says: 
"  It  is  settled  by  repeated  adjudications  in  this  State  that  the  succes- 
sive possessions  of  trespassers  cannot  be  so  connected  as  to  make  up 
the  bar  of  seven  years  under  the  second  section  of  the  Act  of  1819, 
and  for  the  reason  that  there  can  be  no  privity  between  wrong-doers." 
In  this  case  he  reviews  Marr  v.  Gilliam.  On  page  51  he  apparently 
approves  the  statement  of  the  law  as  made  by  Judge  Wright,  to  the 
effect  that  successive  possessions  of  trespassers  may  be  tacked  together 
where  the  successive  possessors  hold  the  land  as  their  own,  and  there 
is  a  privity  of  estate  between  them.  On  the  next  page,  however,  he 
says  that  the  possessory  right  of  a  naked  trespasser  is  not  descendible 
or  alienable.  This  is  clearly  in  conflict  with  the  position  of  Judge 
Wright.  In  neither  case,  however,  was  the  law,  as  stated,  called  for. 
Thus  we  have  conflicting  declarations  of  the  law  from  eminent 
judges,  but  none  of  them  are  stamped  with  the  authority  of  an  ad- 
judged case. 

In  Wait's  Action  and  Defences  the  following  is  stated  to  be  the 
law :  "  When  there  are  several  successive  adverse  occupants  of  real 
property,  the  last  one  may  tack  the  possession  of  his  predecessor  to 
his  so  as  to  make  a  continuous  adverse  possession  for  the  time  re- 
quired by  the  statute,  provided  there  is  a  privity  of  possession  be- 
tween such  occupants;  and  in  case  of  an  actual  adverse  possession, 
such  privity  arises  from  a  parol  bargain  and  sale  of  the  possession  of 
the  premises  followed  by  delivery  thereof,  as  well  as  by  a  formal  con- 
veyance from  one  occupant  to  the  other."  Vol.  6,  p.  455,  and  the 
cases  there  cited. 

In  Weber  v.  Anderson,  73  111.  439,  the  facts  presented  a  case  in- 
volving almost  every  essential  element  embodied  in  the  case  under 
consideration.  The  instruction  in  the  lower  court  to  the  jury  was 
that  the  rights  acquired  by  the  first  possessor  could  not  be  trans- 
mitted except  by  deed.  The  case  was  reversed,  the  superior  court 
saying  that  there  was  "  parol  proof  "  showing  the  Plank  Eoad  Com- 
pany transferred  "their  possessions  over  to  him"  (the  defendant). 
It  was  held  that  parol  proof  was  sufficient  to  show  the  transfer  of 
possession,  and  that  it  could  be  tacked  to  the  subsequent  holding.  It 
does  not  clearly  appear  in  that  case  whether  or  not  there  was  an 
actual  transfer  of  a  possessory  right  by  parol.     The  language  of  the 


SECT.    l]  ERCK    V.    CHURCH  89 

Court  would  admit  of  this  construction.  If,  however,  the  possession 
merely  passed  as  in  the  case  under  consideration,  sub  silentio,  Avith- 
out  any  knowledge  by  either  party  that  there  was  such  a  possessory 
right,  and  that  it  was  being  transferred,  then  the  case  is  an  extreme 
one. 

The  opposite  conclusion  was  reached  under  a  similar  state  of  facts 
by  the  Supreme  Court  of  Wisconsin  in  Graeven  v.  Devies,  31 
K  W.  E.  914. 

In  Fanning  v.  Wilcox,  3  Day  (Conn.),  258,  the  rule  (as  quoted 
by  Wood  on  Limitations,  p.  582,  note)  is  thus  stated  ■}  "  Doubtless 
the  possessions  must  be  connected  and  continuous,  so  that  the  posses- 
sion of  the  true  owner  shall  not  constructively  intervene  between 
them;  but  such  continuity  and  connection  may  be  effected  by  any 
conveyance,  agreement,  or  understanding  which  has  for  its  object  a 
transfer  of  the  rights  of  the  possessor,  or  of  his  possession,  and  is 
accompanied  by  a  transfer  of  possession  in  fact." 

This  is  in  substantial  accord  with  the  doctrine  as  stated  by  Judge 
Wright  in  Marr  v.  Gilliam,  which  is  approved  by  us.  There  must 
be  a  privity  of  estate  connecting  the  successive  possessions,  and  a 
transfer  of  the  possessory  right,  by  grant,  inheritance,  devise,  or  con- 
tract, verbal  or  written.  The  mere  fact  of  successive  possessions 
appearing,  and  nothing  more,  will  not  constitute  such  privity.  If 
the  contrary  rule  were  adopted,  then  any  independent  trespasser 
entering  upon  land  simultaneously  with  the  abandonment  of  it  by 
a  prior  trespasser  could  connect  the  two  possessions,  without  any 
pretence  of  a  privity  of  estate,  by  merely  showing  that  there  had  been 
no  actual  hiatus  between  the  possessions. 

The  deed  to  Church  does  not  embrace  the  land  in  dispute,  and 
there  is  no  evidence  that  Warner  undertook  to  transfer  to  Church 
his  possessory  right  to  it.  On  the  contrary,  it  is  shown  that  he  was 
ignorant  of  having  such  right.  There  is  no  privity  of  estate  between 
them  in  respect  to  this  land.  Warner  both  acquired  and  aban- 
doned his  possessory  right  in  ignorance  of  its  existence.  The  entry 
by  Church  was  a  new  disseizin,  and  a  new  period  of  limitation 
began. 

The  decree  of  the  Chancellor  is  affirmed.^ 

1  This  quotation  is  not  from  Fanning  v.  Willcox,  but  from  Smith  v. 
Chapin,  31  Conn.  530,  531,  ante,  p.  84  note. 

^  Mcsscr  V.  Ilibernia  Sor.,  149  Cal.  122;  Evans  v.  Welch,  19  Colo.  355, 
accord.  Compare  Sheldon  v.  Michigan  Central  R.  R.  Co.,  161  Mich.  503; 
Gildea  v.  Warren,  173  Mich.  28;  Lake  Shore  Ry.Co.  v.  Sterling,  1S9  Mich. 
366;  Robertson  v.  Boylon,  181  N.  W.  (Mich.)  989;  Moore  v.  Ilelrcy.  235 
Mo.  443;  Rembert  v.  Edmondson.  99  Tcnn.  15;  Fergusuii  v.  Prince,  136  Tenn. 
543,  554-558. 

Contra,  St.  Louis  S.  W.  Ry.  Co.  v.  Midkey,  100  Ark.  71;  Rich  v.  Xaff- 
ziger,  255  III.  98;  Wishart  v.  McKnight.  178  Mass.  356;  Crowder  v.  Xeal.  100 
Mi.ss.  730;  Belotti  v.  Bickhardt,  228  X.  Y.  296;  Xaher  v.  Farmer.  60  Wash. 
600;  CUthero  v.  Fenner,  122  Wi.^.  3.56.  Spo  Vikhui  C„.  v.  Crawford.  84  Kan. 
203;  29  Ilarv.  L.  Rev.  790. 


90  GKLSWULD    V.    liUTLEU  [CHAP.    11 


F.     Disabilities. 
GRISWOLD  V.  BUTLER 

3  Conn.  227.     1820. 

Bristol,  J.^  .  .  .  Let  it,  then,  be  assumed,  that  Hezekiah  Griswold 
was  disseised  in  1793;  that  he  was  then  non  compos  mentis,  and  so 
continued  till  his  death  in  1802;  that  Mercy  Weller,  on  whom  the 
descent  was  cast,  was  also  non  compos  mentis,  and  so  continued  until 
her  death  in  1817;  and  that  this  action  was  brought,  by  Elijah  Gris- 
wold, her  heir,  within  five  years  after  her  death ;  the  plaintiff  is  still 
barred  of  a  recovery.  To  raise  this  question  we  must  assume  the 
fact,  that  Hezekiah  Griswold  was  disseised  in  1792;  and  that  the 
possession  of  the  defendant  and  others,  since  that  time,  has  been  ad- 
verse to  the  title  of  Hezekiah  Griswold  and  his  heirs;  for  if  the  pos- 
session has  not  been  adverse,  but  held  under  Hezekiah  Griswold, 
without  any  claim  or  title  in  the  occupants,  no  possession,  however 
long,  will  acquire  a  title. 

It  has  been  urged,  that  the  disability  of  Hezekiah  Griswold  and  his 
heir  was  one  continued  disability ;  that  the  circumstance  of  Hezekiah 
Griswold's  death  makes  no  difference;  but  the  case  stands  on  the 
same  ground  as  if  Hezekiah  Griswold  had  lived  until  1817,  when  his 
heir  would  have  an  undoubted  right  of  entry  for  five  years ;  that  the 
case  does  not  compare  with  one  where  there  occur  two  different  dis- 
abilities in  the  same  person,  which  cannot  be  tacked;  but  that  this 
is  the  farthest  to  which  any  adjudged  case  has  extended;  that  the 
statute  was  intended  to  punish  the  negligent  owner,  by  a  forfeiture 
of  his  title^  and  it  would  be  an  extremely  harsh  construction  to  apply 
the  statute  in  a  case,  where,  during  the  whole  time  of  the  disseisin, 
the  true  owners  had  never  been  competent  for  a  single  moment,  to 
assert  their  title. 

In  reply  to  this  reasoning,  let  it  be  remarked,  that  the  question 
depends  on  the  true  meaning  of  the  statute;  and  the  best  mode  of 
ascertaining  that  meaning,  is,  to  examine  the  language  made  use  of, 
and  derive  the  meaning  from  the  language,  instead  of  arbitrarily 
fixing  that  meaning,  in  the  first  place,  and  then  endeavoring  so  to 
construe  the  language  as  to  make  it  conform  to  the  standard  pre- 
viously set  up.  It  is  unfortunate  that  certain  phraseology,  in  fre- 
quent use  on  this  subject,  was  ever  adopted ;  such  as,  "  that  the  stat- 
ute never  operates,  where  there  has  been  no  laches,"  that  "  it  never 
runs  against  persons  who  are  under  a  disability;"  &c.,  &c.  This 
language,  without  conveying  any  definite  ideas,  had  nearly  frittered 
away  a  most  useful  statute,  until  Judge  Smith,  in  the  case  of  Bush 

1  The  statement  of  facts  is  omitted,  and  only  a  portion  of  the  opinion 
of  one  of  the  judges  is  given. 


SECT.    l]  GRISWOLD    V.    BUTLER  .      91 

V.  Bradley,  4  Day,  298,  instead  of  adopting  this  legal  jargon,  re- 
called our  attention  to  the  language  of  the  act,  and  endeavored  to 
ascertain  its  meaning,  not  by  attributing  certain  motives  to  the  legis- 
lature, and  then  twisting  the  language  so  as  to  make  it  conform, 
but  by  learning  the  meaning  and  intention  of  the  legislature  from 
the  language  made  use  of;  which  is  the  only  safe  mode  of  detorniining 
what  the  legislature  intended.  The  accuracy  of  this  language  is 
also  denied,  by  Judge  Swift,  in  the  case  of  Biince  &  al.  v.  Wolcoti, 
2  Conn.  Rep.  27.  "  Xor,"  says  he  "  is  the  proposition  correct,  that 
the  statute  ncA^er  begins  to  run,  against  a  person  under  a  disability. 
Suppose  that  the  party  claiming  is  an  infant,  when  the  title  accrues; 
if  fifteen  years  run  during  his  infancy,  he  has  but  five  years,  after 
he  comes  of  full  age,  to  make  his  entry.  This  clearly  shows,  that 
the  statute  operates  against  him  during  the  disability.  Indeed, 
the  statute  always  begins  to  run  against  a  man,  the  moment  he  is  dis- 
seised, whether  he  is  under  a  disability,  or  not." 

We  may  now  take  it  for  granted,  in  conformity  to  the  language 
of  the  statute,  and  the  unanimous  opinion  of  the  court  of  errors,  in 
the  case  of  Bunce  &  al.  v.  Wolcoii,  that  the  statute  began  to  run, 
the  moment  Hezekiah  Griswold  was  disseised,  whether  under  dis- 
ability, or  not;  and  more  than  fifteen  years  having  elapsed  since  that 
disseisin,  the  rights  of  his  heirs  are  lost,  unless  those  rights  are 
saved  by  the  proviso :  for  it  is  too  clear  to  admit  of  argument,  that, 
had  the  statute  contained  no  prorifio,  the  interest  of  all  persons 
whether  under  disability,  or  not,  would  be  destroyed,  by  an  adverse 
possession  of  fifteen  years. 

Docs  the  proviso,  then,  save  the  right  of  the  present  plaintiff,  and 
permit  him  to  assert  it,  at  any  time,  Avithin  five  years,  not  from  the 
death  of  Hezekiah  Griswold,  to  whom  the  right  of  entry  first  ac- 
crued, but  from  the  death  of  Mercy  Weller  ?  If  the  present  plaintiff 
can  enter  within  five  years,  after  her  death,  if  he  should  be  under  a 
disability  during  his  life,  his  heijs  will  have  the  same  right  to  enter 
w'ithin  five  years  from  liis  death;  and  so  different  successive  disabil- 
ities might  be  extended  to  an  indefinite  period.  Such  was  not  the 
intention  of  the  legislature.  The  saving  of  the  statute  relates  solely  , 
to  disabilities  existing  at  the  time  when  the  right  of  entry  first 
accrued.  Bush  <f-  al.  v.  Bradley,  4  Day  298.  Bunce  &  al.  v.  Wol- 
cott,  2  Conn.  Rep.  27.  Stowed  v.  Lord  Zouch,  1  .Plowd,  353.  Doc 
d.  George  &  al.  v.  Jesson,  6  East  80.  Eager  &  ux.  v.  The  Common- 
wealth, 4  Mass.  Rep.  182.  It  does  not  provide  a  remedy  for  sub- 
sequent disabilities,  even  in  the  person  to  Avhom  the  right  of  entry 
does  first  accrue.  For  if  an  infant  of  the  age  of  six  years  is  disseised, 
and  before  arriving  at  full  age,  marries,  and  continues  under  cover- 
ture, without  asserting  her  title,  more  than  five  years  after  she 
attains  to  full  age,  her  title  is  barred;  and  if,  instead  of  marrying, 
she  had  been  visited  with  insanity,  before  she  arrived  at  full  age, 
and  continued  insane,  during  the  whole  five  years  after,  her  jitle 


92      ,  GRISWOLD    V.    BUTLER  [CHAP.    II 

would  be  also  lost;  for  we  liavo  seen,  that  whether  a  supervenient 
(Usability  be  voluntary  or  involuntary,  makes  no  difference;  and  the 
reason  is,  that  no  disability  is  provided  for,  or  saved,  except  the 
same  disability,  which  existed  when  the  right  of  entry  first  accrued. 
And  an  entry  must  be  made  within  five  years  after  that  disability 
ceases  to  exist,  whether  any  other  disability  has  been  superadded  or 
not,  provided  more  than  fifteen  years  have  elapsed  from  the  time 
of  the  disseisin. 

The  saving  of  the  statute,  therefore,  relates  to  the  disability  of 
Hezekiah  Griswold,  to  whom  the  right  of  entry  first  accrued.  Had 
his  disability  been  removed,  during  his  life,  and  he  become  of  sound 
mind,  he  must  have  entered  within  five  years,  to  protect  himself 
from  the  operation  of  the  statute. 

Must  not  his  heirs  enter  within  five  years  from  his  death,  in  the 
same  manner,  that  he  must  have  entered  within  five  years  after  the 
removal  of  his  disability?  And  this,  whether  the  heirs  are  under 
disability,  or  not? 

The  fourth  section  of  the  statute  in  question,  after  providing  a 
saving  for  the  disabilities  existing  when  the  title  accrues,  proceeds 
to  annex  a  limitation  to  the  rights  saved,  and  to  prescribe  the  time 
within  ivhich,  and  hy  whom.,  those  rights  shall  be  exercised.  "So 
as  such  person  or  persons,  or  his  or  their  heirs,  shall,  within  five 
years  next  after  his  or  their  full  age,  discoverture,  or  coming  of 
sound  mind,  enlargement  out  of  prison,  or  coming  into  this  country 
of  ]^ew-England,  or  territory  of  JSTew-York,  or  death,  take  benefit 
of,  and  sue  forth  the  same,  and  at  no  time  after  the  said  five  years : " 
That  is  to  say,  "  take  benefit  "  of  an  entry,  or  "  sue  forth  "  an  action 
to  recover  the  land. 

This  language  is  susceptible  of  one  construction,  and  one  only, 
when  taken  in  connection  with  the  other  parts  of  the  statute.  It  is 
this:  that  such  person  or  persons,  w^ho  were  owners  of  the  land,  at 
the  time  the  right  of  entry  first  accrued,  or  at  the  time  of  the  dis- 
seisin, if  then  laboring  under  the  disability  of  infancy,  should  have 
five  years,  after  he  or  they  become  of  full  age;  if  under  coverture, 
should  have  five  years  from  the  time  they  become  discovert;  if  be- 
yond seas,  should  have  five  years  after  their  return ;  and  if  non  compos 
mentis,  should  have  five  years  after  they  became  of  sound  mind; 
but  as  these  disabilities  might  never  be  removed,  but  continue  until 
death;  that  the  heirs  of  such  disabled  persons,  who  died  under  the 
same  disability  which  existed  when  their  title  accrued,  should  also 
have  five  years  from  the  death  of  the  disabled  ancestor,  to  make  their 
entry,  or  bring  their  action  to  recover  the  land.  There  is  no  saving 
for  any  disability  in  the  heirs  of  the  person  to  whom  the  right  of 
entry  first  accrues,  any  more,  than  for  supervenient  disabilities  in 
the  same  person ;  but  the  clause  .in  question  constitutes  as  absolute 
a  bar  to  the  heirs  of  a  disabled  person,  who  do  not  enter  within  five 
years  after  his  death,  as  fifteen  years  adverse  possession  would  be 


SECT.    l]  (JRISWOLI)    r.    BUTLER  93 

to  every  person,  whether  under  disability  or  not,  had  the  statute 
contained  no  proviso.  It  is  true,  that  upon  this  construction  of  the 
statute,  the  person  first  disseised  may  labor  under  a  disability,  and 
die  leaving  heirs  under  similar  disabilities;  and  a  good  title  be  lost, 
without  laches  in  the  owners.  So,  if  an  infant  is  disseised,  and 
marries  under  twenty-one  years  of  age,  and  continues  under  cover- 
ture more  than  five  years,  after  attaining  her  full  age,  without 
asserting  her  rights,  her  title  is  lost,  and  that  without  laches;  but 
if  marrying  under  twenty-one,  is  to  be  accounted  her  own  folly 
(though  her  minority  must  protect  her  from  this  imputation)  if  at 
the  age  of  twenty  she  becomes  non  compos,  and  does  not  bring  her 
action,  or  make  her  entry,  within  five  years  after  she  is  of  full  age, 
she  is  also  barred;  and  that  without  any  imputation  of  laches  or  folly. 
Where,  then,  is  the  distinction  between  the  hardship  of  the  present 
case,  and  that  which  existed  in  the  case  of  Bunce  v.  Wolcott,  and 
many  other  cases?  The  necessity  of  protecting  long  and  peaceable 
possession  of  land  is  much  more  urgent,  than  any  considerations 
resulting  from  the  pretended  hardship  of  the  rule :  and  if  this  rule 
is  not  adopted,  but  the  saving  of  the  statute,  instead  of  being  confined 
to  disabilities  existing  at  the  time  of  the  disseisin,  is  to  be  extended 
to  successive  disabilities  in  the  heirs  of  the  person  first  disseised, 
there  is  no  telling  to  how  long  a  period  they  may  extend,  or  how 
much  evil  such  a  construction  would  entail  on  the  community. 
Every  reason,  which  can  be  urged  against  admitting  supervenient 
disabilities  in  the  same  person,  to  protect  his  title,  equally  applies 
to  the  present  case;  for  although  some  supervenient  disabilities 
may  be  voluntary,  and  others  not  so;  yet,  as  I  have  already  remarked, 
the  distinction  betw^een  them  is  exploded. 

There  is  no  substantial  difference  between  the  case  of  Bunce  v. 
Wolcoft,  before  cited,  and  the  present.  In  that  case,  the  court  de- 
cided, that  the  saving  of  the  statute  applied  only  to  such  disabilities 
as  existed  at  the  time  when  the  right  of  entry  first  accrued;  which, 
they  said,  was  as  the  time  when  the  owner  was  first  disseised,  and 
not  to  any  supervenient  disabilities;  and  although  a  disability  in  the 
heir  of  a  person  disabled,  is  not  properly  a  supervenient  disability, 
yet  it  falls  within  the  same  reason;  and  what  is  more  conclusive, 
the  statute  declares,  that  if  the  person  first  disseised  is  under  a  dis- 
ability, and  dies  before  it  is  removed,  his  heirs  shall  have  five  years 
from  his  death  to  make  their  entry;  and  if  they  suffer  this  time  to 
pass,  they  are  barred,  whether  under  a  disability  or  not.^ 

1  Compare  Dewey  v.  Sewanee  Co..  191  F.  R.  450. 

The  statutes  of  limitation  ordinarily  do  not  enlarge  the  period  within 
which  the  true  owner  may  make  entry  or  bring  action  except  on  accoimt  of 
disabilities  affecting  the  owner  at  the  time  his  right  first  accrued.  Alli.s  v. 
Moore,  2  All.   (Mass.)  306. 

This  is  true  even  though  the  owner  has  passed  under  a  second  disability 
before  being  freed  from  the  first.    Mercer  v.  Selden,   1   How.   (U.  S.)   37; 


94  GRISWOLD    V.    BUTLER  [CHAP.    II 

Buncc  V.  Wolrott,  2  Conn.  27;  Dcmared  v.  Wynkuop,  3  Johns.  Ch.  (N.  Y.) 
129. 

The  rights  of  heirs  of  the  owner  are  not  enlarged  on  account  of  any  dis- 
abilities affecting  them.  Fleming  v.  Griswold,  3  Hill  (N.  Y.)  85;  Scawell  v. 
Bunch,  6  Jones  (N.  C.)  195.     Contra,  Rose  v.  Daniel,  3  Brev.  (S.  C.)  438. 

This  is  true  e\-cn  though  their  ancestor  was  under  a  disability  at  the 
time  his  right  first  accrued.  Thorp  v,  Raymond,  16  How.  (U.  S.)  247;  Gris- 
wold V.  Butler,  supra. 

Some  statutes  expressly  limit  the  period  during  which  the  true  owner 
may  take  advantage  of  a  disability.  California,  Code  Civ.  Proc.  (1915), 
§  328;  Kentucky,  Stats.  (1915),  §  2508;  Missouri,  Rev.  Stats.  (1919),  §  1307. 


SECT.  II.]  PRESCRIPTION  95 


SECTION  II. 

PRESCRIPTION. 

Note.  —  Several  of  the  earlier  cases  on  Prescription  are  reported  only  in 
Serjeant  Williams's  note  to  Yard  v.  Ford,  2  Wni.  Saund.  172,  175,  as  follows: 
"  In  Lewis  v.  Price,  Worcester  Spring  Assizes,  1761,  which  was  an  action  un 
the  case  for  stopping  and  obstructing  the  plaintiff's  lights.  Wilmot,  J.,  said. 
that  where  a  house  has  been  built  fortj'  years,  and  has  had  lights  at  the  end 
of  it,  if  the  owner  of  the  adjoining  ground  builds  against  them  so  as  to 
obstruct  them,  an  action  lies;  and  this  is  founded  on  the  same  reason  as  when 
they  have  been  immemorial,  for  this  is  long  enough  to  induce  a  presumption 
that  there  was  originally  some  agreement  between  the  parties;  and  he  said 
that  twenty  years  is  sufficient  to  give  a  man  a  title  in  ejectment,  on  which 
he  ma3'  recover  the  house  itself;  and  he  saw  no  reason  why  it  should  not  be 
sufficient  to  entitle  him  to  any  ea.sement  belonging  to  the  house.  So  in  an 
action  on  the  case  for  stopping  up  ancient  lights,  the  defendant  attempted 
to  show  that  the  lights  did  not  exist  more  than  sixty  years;  Wilmot,  C.  J., 
said,  that  if  a  man  has  been  in  possession  of  a  house  with  lights,  belonging  to 
it  for  fifty  or  sixty  years,  no  man  can  stop  up  those  lights-  possession  for 
such  a  length  of  time  amounts  to  a  grant  of  the  liberty  of  making  them; 
it  is  evidence  of  an  agreement  to  make  them.  If  I  am  in  possession  of  an 
estate  for  so  long  a  period  as  sixty  years,  I  cannot  be  disturbed  even  by  a 
writ  of  right,  the  highest  writ  in  the  law.  If  my  possession  of  the  house  can- 
not be  disturbed,  shall  I  be  disturbed  in  my  light ><?  It  would  be  absurd. 
But  the  action  can  only  be  maintained  for  daniasres  so  far  as  the  lights 
originally  extended,  and  not  for  an  increase  of  light  by  enlarging  the  win- 
dows recently;  and  I  should  think  a  much  shorter  time  than  sixty  years 
might  be  sufficient;  but  here  there  has  been  a  possession  of  that  time. 
Dougal  v.  Wilson,  Sittings  C.  B.  Trin.  9  Geo.  3.  So  in  an  action  on  the  case 
for  obstructing  a  way.  the  plaintiff  proved  that  F.  was  seised  of  the  plaintiff's 
tenement  and  the  defendant's  close,  and  in  1753,  conveyed  the  tenement  to 
the  plaintiff  with  all  ways  therewith  used,  and  that  this  way  had  been  used 
with  the  tenement  as  fai'  back  as  memory  could  go.  The  defendant  pro- 
duced a  subsisting  lease  from  F.  for  three  lives  made  in  1723,  by  which  F. 
demised  the  field  in  question  in  as  ample  a  manner  as  one  R.  a  former  tenant 
held  it,  and  in  the  lease  there  was  no  exception  of  a  way  over  the  close. 
Y.\TES,  J.,  held  that  by  the  lease  without  any  reservation  the  way  was  gone, 
and  therefore  could  not  pass  under  the  words  all  ways;  but  as  thirty  years 
had  intervened  between  the  defendant's  lease  and  the  plaintiff's  conveyance, 
and  the  way  had  been  used  all  the  time,  that  was  sufficient  to  afford  a  pre- 
sumption of  a  grant  or  license  from  the  defendant  so  as  to  make  it  a  way 
lawfully  used  at  the  time  of  the  plaintiff's  conveyance,  and  then  the  words 
of  reference  would  operate  upon  it,  and  the  way  would  pass.  Bull.  Nis. 
Pri.  74,  Kcymer  v.  Su^nmers.  If  ^trespass  be  brought  against  a  per-son  for 
using  a  way  under  similar  circumstances,  as  he  cannot  prescribe  for  the  way, 
he  must  justify  under  a  non-existing  grant,  and  so  excuse  a  projcrt.  As  where 
in  trespass  quare  claiisum  jregit  in  B.,  the  defendant  justified  under  a  grant 
of  a  right  of  way  over  B.  by  a  deed  lost  by  time  and  accident ;  and  on  i.ssue 
joined  on  a  traverse  of  the  grant,  it  appeared  in  evidence  that  the  way  had 
been  used  adversely,  and  not  by  leave  and  favor,  for  twenty  years  and  more, 
over  the  close  B.  Which  ad\-erse  user  of  the  way  for  so  long  a  period,  the 
learned  judge  at  the  trial  thought  sufficient  to  leave  to  the  jury  to  presume 
a  grant;  and  the  Court  of  K.  B.  on  a  motion  for  a  new  trial  confirmed  hia 
opinion.    3  East,  294.     Campbell  v.  Wilson.     This  is  a  strong  case:   for  the 


96  PRESCRIPTION  [chap.    II 

grant  must  be  presumed  to  huve  been  made  within  twenty-six  years,  because 
at  that  time  all  former  ways  had  been  extinguished  by  the  operation  of  an 
inclosure  act.  So  in  an  action  on  the  case  for  obstructing  the  plaintiff's 
lights,  who  proved  an  uninterrupted  possession  of  them  for  twenty-five  years 
past:  Gould,  J.,  who  tried  the  cause,  then  called  upon  the  defendant  to  show 
if  he  could  answer  this,  because,  if  unanswered  he  thought  it  sufficient  to 
establish  the  plaintiff's  case.  The  defendant  upon  this  offered  a  grant  from 
the  former  owner  of  the  defendant's  premises  to  the  plaintiff's  predecessor, 
dated  June,  1750,  by  which  he  granted  him  liberty  to  put  out  a  particular 
window,  and  argued  that  having  this  grant  and  no  other,  it  must  be  presumed 
that  the  plaintiff  never  had  any  other,  and  this  would  be  an  answer  to  the 
presumption  arising  from  length  of  possession.  The  judge  thought  the  grant 
would  not  alter  the  case,  as  it  related  to  a  particular  window,  which  was  not 
included  in  the  present  action,  and  no  exception  of  any  other,  or  reference  was 
mentioned  in  the  grant.  The  defendant  then  relied  on  the  possession  pre- 
vious to  these  twenty-five  years;  but  the  judge  said  that  would  not  avail 
them ;  he  thought  twenty  years'  possession  unanswered  was  sufficient,  and  if 
the  defendant  had  any  evidence  to  explain  the  possession  within  twenty  years, 
to  show  it  was  limited,  or  modified,  or  bad  in  its  commencement,  that  would 
be  material ;  the  defendant  offered  none  such,  and  there  was  a  verdict  for  the 
plaintiff;  the  judge  however  reserved  the  point  of  law  if  the  defendant  thought 
fit  to  move  the  court.  Afterwards  a  rule  to  show  cause  why  there  should  not 
be  a  new  trial  was  obtained  on  the  ground  of  a  misdirection;  because  the 
judge  told  the  jury  that  so  long  an  enjoj-ment  was  sufficient  to  give  the  plain- 
tiff a  right  to  them,  although  the  defendant  offered  to  prove  that  there  were 
no  lights  there  previous  to  that  time ;  but  that  this  evidence  was  not  received : 
and  the  counsel  for  the  rule  insisted  that  the  judge  had  called  the  twenty-five 
years'  possession  an  absolute  bar,  incapable  of  being  overturned  by  any  con- 
trary proof,  where  it  was  only  a  presumptive  proof  which  might  be  explained 
away;  that  it  was  a  matter  of  fact  for  the  jury,  but  the  judge  left  nothing  to 
the  jury,  treating  it  as  a  matter  of  law.  Lord  Mansfield.  I  think  there 
must  be  some  mistake  in  the  statement  of  what  passed  at  the  trial.  The 
enjoj^ment  of  lights,  with  the  defendant's  acquiescence  for  twenty  years,  is 
such  decisive  presumption  of  a  right  by  grant  or  otherwise,  that  unless  con- 
Qtradicted  or  explained,  the  jury  ought  to  believe  it;  but  it  is  impossible  that 
length  of  time  can  be  said  to  be  an  absolute  bar,  like  a  Statute  of  Limita- 
tion; it  is  certainly  a  prcsuviptive  bar  which  ought  to  go  to  a  jurj'.  Thus 
in  the  case  of  a  bond,  there  is  no  Statute  of  Limitations  that  bars  an  action 

'upon  it,  but  there  is  a  time  w^hen  a  jury  may  presume  the  debt  to  be  dis- 
charged, as  if  no  interest  appear  to  have  been  paid  for  sixteen  or  twenty  years. 
The  same  rule  prevails  in  the  case  of  a  highway.  Time  immemorial  itself 
is  only  presumptive  evidence;  for  so  it  was  held  in  the  case  of  the  Mayor 
of  Kingston  upon  Hull  v.  Homer,  Co^^^^.  102.     In  a  case  before  me  at  Maid- 

c  stone,  I  held  length  of  time,  when  unanswered  and  unexplained,  to  be  a  bar. 
WiLLES,  J.  There  was  a  case  before  me  at  York  where  I  held  uninterrupted 
possession  of  a  pew  for  twenty  years  to  be  presumptive  evidence  merely, 
and  that  opinion  was  afterwards  confirmed  in  the  Court  of  Common  Pleas. 
AsHHURST,  J.  I  should  have  thought  it  wiis  the  duty  of  the  counsel  for  the 
defendant  to  have  told  the  judge  that  this  evidence  was  only  a  presumptive, 
not  an  absolute  bar;  (to  which  it  was  answered  by  Coke,  of  counsel  for  the 
defendant,  that  it  was  so  and  a  case  was  cited  where  forty  years  were  held 
not  to  be  an  absolute  bar.)  Buller,  J.  I  incline  very  much  to  think  that 
the  judge  was  misunderstood,  for  he  could  never  call  it  an  absolute  bar.  In 
the  Wells  Harbor  Case  this  court  went  fully  into  the  doctrine,  and  the  rule 
■  of  law  is  clear,  that  length  of  time  is  presimiptive  evidence  only.  The  judge 
said,  '  I  think  twenty  years'  uninterrupted  possession  of  these  windows,  is 
a  sufficient  right  for  the  plaintiff's  enjoyment  of  them.'  Now  that  expres- 
sion is  open  to  a  double  construction.    If  the  judge  meant  it  was  an  abso- 


SECT.  II.]  ANGUS    V.    DALTON  97 

lute  bar.  he  was  coitaiuly  wrong;  if  only  as  a  presumptive  bar,  he  was  right. 
The  court  seemed  much  inclined  to  discharge  the  rule,  but  the  counsel  for 
the  defendant  pressmg  it  much,  it  was  made  absolute.  However,  the  next 
day  BuLLER,  J.,  said  that  Ashhuhst,  J.,  had  waited  on  Mr.  .Jlstick  Gould 
who  said  he  never  had  an  idea  but  it  was  a  question  for  a  jury;  and  would 
have  left  it  to  the  jury,  if  the  counsel  for  the  defendant  had  asked  it;  that 
he  compared  it  to  the  case  of  trover,  where  a  demand  and  refusal  are  evi- 
dence of.  but  not  an  actual  conversion.  Rule  discharged.  Darwin  v.  Upton, 
Mich.  26  Geo.  3,  K.  B." 

"  In  an  action  on  the  case,  Stansell  v.  Jollard,  B.  R.  Trin.  43  Geo.,  III. 
M.S.,  Lawrence,  J.,  for  digging  so  near  the  gable-end  of  the  house  of  the 
plaintiff,  let  to  a  tenant,  that  it  fell;  Lord  Ellenborough  held,  that  where,  as 
in  the  case  before  the  court,  a  man  had  built  to  the  extremity  of  his  soil, 
and  had  enjoyed  his  building  above  twenty  years,  upon  analogy  to  the  rule 
as  to  lights,  &c.,  he  had  acquired  a  right  to  a  support,  or  as  it  were  of  lean- 
ing to  his  neighbor's  soil,  so  that  his  neighbor  could  not  dig  so  near  as  to 
remove  the  support;  but  that  it  was  otherwise  of  a  house,  &c.,  newly  built." 
—  1  Selw.  N.  P.  (11th  ed.)  457. 

"  I  take  it  that  twenty  years'  exclusive  enjovment  of  a  water  in  any  par- 
ticular manner  affords  a  conclusive  presumption  of  right  in  the  party  so 
enjoying  it,  derived  from  grant  or  Act  of  Parhament."  —  Per  Lord  Ellen- 
borough,  C.  J.,  in  Beak]/  v.  Shaw,  6  East,  208,  215  (1805).  He  repeated  the 
remark  in  Balston  v.  Bensted,  1  Camp.  463.  465  (1808). 

"  If  the  plaintiff  has  enjoyed  the  support  of  the  land  of  the  defendant  for 
twenty  years  to  keep  up  his  house,  and  both  parties  knew  of  that  support, 
the  plaintiff  had  a  right  to  it  as  an  easement,  and  the  defendant  could  not 
withdraw  that  support  without  being  liable  in  ilamages  for  any  injury  that 
might  accrue  to  the  plaintiff  thereby."  —  Per  P.\rke,  B.,  Hide  v.  Thornborough, 
2  C.  &  K.  250,  255  (1846). 


ANGUS  V.  DALTON  ^ 
3  Q.  B.  D.  85;  4  Q.  B.  D.  162;  6  Ap.  Cas.  740.     1877.  1878.  1881. 

Claim  by  Angus  &:  Company,  coach-builders,  against  Dalton  and 
the  Commissioners  of  her  Majesty's  Works  and  Public  Buildings,  for 
injury  to  the  plaintiffs'  factory  at  Newcastle-upon-Tyne. 

At  the  trial,  before  Lush,  J.,  in  1876,  the  judge  directed  a  verdict 
for  the  plaintiffs  for  the  amount  claimed,  subject  to  a  reference  to 
ascertain  the  damages,  and  extended  the  time  to  enable  the  plaintiffs 

1  This  action  was  tried  in  1876  before  Lush,  J.,  who  directed  a  vcrilict  for 
the  plaintiffs.  The  Queen's  Bench  Division  (Cockbum,  C.  J.,  and  Mcllor,  J; 
Lush,  J.,  dissenting)  in  1877  ordered  judgment  to  be  entered  for  the  defend- 
ants. The  Court  of  Appeal  (Cotton  and  Thesiger,  L.  JJ.;  Brett,  L.  J.,  dis- 
senting) in  1878  reversed  this  judgment  and  ordered  that  the  defendants 
should  elect  within  fourteen  days  whether  they  would  take  a  new  trial,  and 
if  they  did  not  so  elect  that  judgment  should  be  entered  for  the  plaintiff's 
for  the  amount  of  the  damages  asses.sed  by  the  special  referee.  The  case 
was  argued  in  the  House  of  Lords  in  1879,  and  again  in  the  presence  of  seven 
of  the  judges  in  1880.  Three  of  the  judges,  Lindleij,  Lopes,  and  Bowcn, 
JJ.,  were  of  the  opinion  that  the  judgment  of  the  Court  of  .\ppeal  should 
be  affirmed,  and  four,  Pollock,  B.,  Field,  Manisty,  and  Fry,  JJ.,  were  of  the 


98  ANGUS    V.    DALTON  [CHAP.    II 

to  move  for  judgmeut.  In  April,  J.S77,  the  plaintiirs  moved 
accordingly. 

^  The  plaintiffs  are  owners  in  fee  of  a  eoaeh  factory  at  Newcastle- 
upon-Tyne.  The  defendant  Dalton  is  a  builder,  who  had  been  em- 
ployed by  the  Commissioners  of  Works  and  Buildings,  under  a  con- 
tract to  take  down  a  house  adjoining  to  the  plaintiffs'  factory,  and  to 
erect  in  its  stead  a  building  to  be  used  as  a  Probate  office. 

The  action  is  brought  for  excavating  the  soil  of  the  adjoining  prop- 
erty, on  which  the  Probate  office  was  to  be  built,  to  such  a  depth  as 
left  the  foundation  of  that  part  of  the  coach  factory  without  suffi- 
cient lateral  support,  and  thereby  causing  the  factory  to  fall. 

The  two  houses  were  apparently  built  at  the  same  time,  and  were 
estimated  to  be  upwards  of  a  hundred  years  old.  They  were  divided 
by  a  wall  which  belonged  to  the  house  pulled  down,  and  which  wall 
had  been  taken  down  by  the  defendants  without  injury  to  the  factory. 

Up  to  the  year  1849,  being  about  twenty-seven  years  before  the 
accident,  both  houses  had  been  occupied  as  dwelling-houses;  but  in 
that  year  the  plaintiffs'  predecessor  converted  his  house  into  a  coach 
factory,  and  to  adapt  it  to  this  purpose  he  removed  the  internal  walls, 
and  erected  on  his  own  soil  close  to  and  in  contact  with  so  much  of 
the  dividing  wall,  a  large  stack  of  brickwork  serving  the  twofold 
purpose  of  a  chimney  stack,  and  also  of  a  support  to  the  main  girders 
which  had  to  be  put  in  to  sustain  the  floors.  These  girders  were  in- 
serted into  the  stack  on  the  one  side,  and  into  the  plaintiffs'  wall  on 
the  opposite  side,  and  were  strongly  secured  with  braces  and  struts, 
and  they  thus  formed  the  main  support  of  the  upper  stories  of  the 
factory.  "When  the  defendants  removed  the  dividing  wall  they  left 
this  stack  untouched,  and  erected  on  the  site  of  the  dividing  wall  a 
temporary  wooden  gable  so  as  to  protect  the  factory  while  the  new 
building  was  in  progress.  There  had  been  no  cellarage  in  the  ad- 
joinina;  house,  and  it  was  not  disputed  that  if  none  had  been  made. 


opinion  that  judgment  should  be  entered  for  the  plaintiffs  without  leave  to 
defendants,  to  move  for  a  new  trial.  The  law  lords,  Lord  Selborne,  L.  C,  Lord 
Penzance,  Lord  Blackburn,  Lord  Watso7i,  and  Lord  Coleridge,  C.  J.,  were  all 
of  the  opinion  that,  the  defendants  not  having  elected  to  take  a  new  trial 
within  the  time  allotted  to  them,  judgment  should  stand  for  the  plaintiffs. 
Accordingly  judgment  of  the  Court  of  Appeal  was  affirmed.  All  the  courts 
■  and  judges  were  of  the  opinion  that  the  Commissioners  were  liable  for  the 
act  of  Dalton  in  accordance  with  Bower  v.  Peate,  1  Q.  B.  D.  321.  All  of  the 
judges  and  law  lords  —  except  Lord  Coleridge  and  Mellor  and  Lopes,  JJ., 
who  contented  themselves  with  expressing  their  agreement  with  some  one  or 
more  of  the  opinions  that  were  read  —  gave  judgments  of  their  own,  most 
of  them  very  elaborate. 

The  opinions  given  here  are  abbreviated  and  in  part  summarized.  The 
opinions  of  Cotton  and  Brett,  L.  JJ.,  in  the  Court  of  Appeal,  and  all  the 
opinions  in  the  House  of  Lords  are  omitted. 

1  In  no  one  of  the  reports  are  either  the  facts  or  the  arguments  given. 
The  statement  of  facts  here  printed  is  taken  from  the  opinion  of  Lush,  J., 
3  Q.  B.  D.  85,  87. 


SECT.  II.]  ANGUS    V.    DALTON  99 

the  stack  and  the  factory  would  not  have  been  affected  by  the 
alterations. 

The  defendants,  however,  having  removed  the  dividing  wall  and 
erected  the  temporary  gable,  proceeded  to  dig  to  the  depth  of  several 
feet  below  the  level  of  the  foundation  of  the  plaintiffs'  stack,  leaving 
a  thick  pillar  of  the  original  clay  around  the  stack  for  the  purpose  of 
supporting  it  during  the  erection  of  the  new  dividing  wall.  This 
pillar,  however,  large  as  it  was,  proved  to  be  insufficient.  After 
exposure  to  the  air,  and  before  the  foundations  of  the  new  wall  had 
been  completed,  it  gave  way,  and  the  stack  sunk  and  fell,  drawing 
after  it  the  entire  factory. 

Under  these  circumstances,  it  was  contended,  on  behalf  of  the  de- 
fendants, first,  that  the  plaintiffs'  factory  was  not  entitled  to  the  sup- 
port of  the  adjacent  soil;  and,  secondly,  that  at  all  events  the  Com- 
missioners of  Works  and  Buildings  were  not  responsible  for  the 
negligence  of  the  contractor  in  not  leaving  sufficient  support  or  not 
properly  shoring  up  the  chimney  stack. 

These  points  were  reserved  at  the  trial,  which  took  place  before 
Lush,  J.,  at  Newcastle  at  the  Summer  Assizes,  1876,  and  a  verdict 
was  entered  for  the  plaintiffs,  subject  to  the  questions  of  law  and  to 
a  reference  to  an  arbitrator  to  assess  the  damages,  in  case  the  verdict 
should  stand  against  both  or  either  of  the  defendants. 

[Lush,  J.,  was  of  opinion  that  the  building  "  had  acquired  the 
status  of  an  ancient  building"  (page  100),  and  that  the  plaintiffs 
were  entitled  to  hold  their  verdict.  In  the  course  of  his  opinion  he 
said :  —  ] 

I  conclude,  therefor,  that  the  mere  absence  of  assent,  or  even  the 
express  dissent,  of  the  adjoining  owner,  would  not  prevent  the  right 
to  light  and  support  from  being  acquired  by  uninterrupted  enjoy- 
ment, and  that  nothing  short  of  an  agreement,  either  express,  or  to 
be  implied  from  payment  or  other  acknowledgment,  that  the  adjoin- 
ing owner  shall  not  be  prejudiced  by  abstaining  from  the  exercise 
of  his  right,  would  suffice  to  rebut  the  presumption.  In  other  words, 
that  it  would  be  presumed  after  the  lapse  of  twenty  years  that  the 
easement  had  been  enjoyed  by  virtue  of  some  grant  or  agreement, 
unless  it  were  proved  that  it  had  been  enjoyed  by  sufferance  [page 
93]   .  .  . 

The  law  of  lights  having  been  settled  by  the  Prescription  Act,  any 
argument  drawn  from  the  Limitation  Act  applies  oidy  to  such  an 
easement  as  the  one  in  question,  which  was  left  untouched  by  the 
Prescription  Act.  It  seems  to  me  to  be  the  necessary  consequence 
of  the  Limitation  Act,  that  such  an  easement  should  be  gained  by  a 
length  of  enjoyment  commensurate  with  that  bv  which  a  title  to  the 
house  is  gained.  It  would  be  a  strange  anomaly  to  hold  that  a  title 
to  the  house  should  be  acquired,  and  not  a  title  to  that  which  is 
essential  to  its  existence,  —  that  the  law  which  bars  the  owner  from 
recovering  the  tenement  itself  after  he  has  acquiesced  in  a  usurped 


100  ANGUS    V.    DALTON  [CHAP.    II 

ownership  hj  another  for  twenty  years,  yet  leaves  him  at  liberty,  if 
he  happens  to  be  adjoining  owner,  to  let  it  down  and  destroy  it 
altogether,  by  taking  away  that  which  has  been  its  natural  support 
during  the  whole  period.  I  cannot  help  thinking  that  the  revolting 
fiction  of  a  lost  grant  may  now  be  discarded,  in  view  of  the  necessary 
effect  of  the  Limitation  Act  upon  such  an  easement  as  this. 

It  is  not,  however,  necessary  in  this  case  to  base  my  judgment  on 
this  ground.  If  the  right  to  support  still  rests  on  the  doctrine  of 
presumption,  no  facts  are  shown  which  in  my  opinion  are  admissible 
to  rebut  it,  for  nothing  is  shown  except  that  the  adjoining  owner 
i  w^as  not  asked  for  and  did  not  give  his  assent  to  the  alteration  of  the 
house  into  a  factory;  and  this,  for  the  reasons  already  given,  cannot, 
in  my  opinion,  be  held  to  constitute  rebutting  evidence.  If  notice 
to  the  adjoining  owner  that  an  additional  burden  has  been  cast  upon 
his  land  be  an  ingredient,  that  is  disposed  of  by  the  fact  that  the 
*  conversion  of  the  dwelling-house  into  a  factory,  and  the  use  of  the 
premises  as  a  factory  during  twenty-seven  years,  Avere  things  open 
and  notorious. 

There  are  here,  then,  all  the  elements  which  go  to  make  up  the 
ordinary  presumption,  unmixed  Avith  any  rebutting  element.  If 
such  a  length  of  enjoyment  under  such  circumstances  does  not 
create  a  right  to  support  from  the  adjacent  soil,  then  no  building 
the  date  of  whose  origin  can  be  proved  can  claim  it.  For  the  common 
law  does  not  present  any  alternative  to  the  time  of  legal  memory, 
except  twenty  years'  enjoyment.  This  would  be  an  alarming  doc- 
trine, especially  at  the  present  day,  when  a  very  small  proportion 
of  the  owners  of  houses  now  standing  could  rest  their  title  to  sup- 
port upon  immemorial  enjoyment  [pages  94,  95]. 

[CocKBURisr,  C.  J.,  was  of  opinion  that  the  defendants  had  acquired 
no  easement  of  support ;  he  said :  —  ] 

That  the  right  to  the  lateral  support  of  the  adjacent  soil  for  a 
building  which  has  been  superadded  tO'  the  soil  is  an  easement,  as  dis- 
tinguished from  the  proprietary  right  to  such  support  for  the  soil 
itself  in  its  natural  condition,  is  undoubted.  Equally  certain  is  it 
that,  except  where  the  positive  law  steps  in,  and,  in  the  absence  of  any 
legal  origin,  gives  to  a  fixed  period  of  possession  or  enjoyment  the 
status  of  absolute  and  indisputable  right,  every  easement  as  against 
the  owner  of  the  soil  must  have  had  its  origin  in  grant.  Upon  both 
''  these  points  the  authorities  are  uniform  and  positive.  It  is  no  doubt 
equally  true  that,  in  the  absence  of  proof  of  any  grant,  the  existence 
of  a  lost  grant  may  be  presumed  from  length  of  enjoyment.  And  in 
no  system  of  jurisprudence  has  this  doctrine  been  carried  to  greater 
lengths  than  in  our  own.  In  the  absence  of  any  sufficient  law  regu- 
lating the  period  of  prescription,  judges,  to  make  up  for  this  defi- 
ciency, were  in  the  habit  of  directing  juries  to  presume  grants,  in  the 
past  or  possible  existence  of  Avhich  no  one  believed,  —  a  practice  to 
be  deprecated,  and,  in  spite  of  precedent,  to  be  followed  with  great 
reserve,  and  certainly  with  no  disposition  to  extend  it. 


SECT.  II.]  ANGUS    V.    DALTON  101 

Looking  to  the  importance  of  tlio  question  here  involved,  and  to 
the  fact  that  the  law  as  to  lateral  support,  not  having  hitherto  been 
brought  before  a  court  in  banc,  has  not  been  made  the  subject  of 
authoritative  decision,  it  may  be  useful  to  trace  the  growth  of  this 
doctrine  as  to  presumption  and  the  extent  to  which  it  has  been  car- 
ried, and  for  this  purpose  to  review  the  authorities  on  the  law  of 
prescriptive  easements. 

At  the  common  law  there  appears  to  have  existed  no  fixed  period 
of  prescription.  Rights  were  acquired  by  prescription  when  posses- 
sion or  enjoyment  had  existed  beyond  the  memory  of  man,  or  where, 
as  the  legal  phrase  was,  "  the  memory  of  man  ran  not  to  the  con- 
trary." But  by  several  Statutes,  fixed  periods  were  limited  for  the 
bringing  of  actions  for  the  recovery  of  real  estate.  Prior  to  the 
Statute  of  Merton,  Bracton  tells  ns  that  the  limitation  in  a  writ  of 
right  was  from  the  time  of  Henry  I.,  that  is  to  say,  from  the  year 
1100,  or  135  years.    L.  2,  f.  179. 

By  the  Statute  of  Merton  (20  Hen.  3,  c.  8)  the  limitation  in  a 
writ  of  right  was  from  the  time  of  Henry  II.,  —  a  period  of  seventy 
years.  Writs  of  inort  d'ancestor,  and  of  entry,  were  not  to  pass  the 
last  return  of  King  John  from  Ireland,  —  a  period  of  twenty-five 
years.  Writs  of  novel  disseisin  were  not  to  pass  the  first  voyage  of 
the  king  into  Gascony,  —  a  period  of  fifteen  years. 

JN^ew  periods  of  limitation  were  fixed  by  the  Statute  of  Westmin- 
ster, 3  Edw.  1,  c.  39  (1275).  By  this  Statute  the  time  for  bringing 
a  writ  of  right  was  limited  to  the  time  of  King  Richard  I.,  —  a 
period  of  eighty-eight  years.  Writs  of  mort  d'ancestor,  of  cosinage, 
of  aiel,  and  of  entry,  Avere  limited  to  the  coronation  of  Henry  III.,  — 
about  fifty-eight  years.  The  writ  of  novel  disseisin  was  to  remain 
limited  as  before,  namely,  to  the  passage  of  Henry  into  Gascony, 

It  is  plain  that  this  Statute  had  reference  to  actions  for  the  re- 
covery of  real  estate.  Nevertheless  the  judges,  with  that  assumption 
of  legislative  authority  which  has  at  times  characterized  our  judica- 
ture, proceeded  to  apply  the  rule  as  to  prescription  established  by  the 
Statute  to  incorporeal  hereditaments,  and,  among  others,  to  ease- 
ments. 

As  might  have  been  foreseen,  as  time  went  on,  the  limitation  thus 
fixed  became  attended  with  the  iticonvenience  arising  from  the  im- 
possibility of  carrying  back  the  proof  of  possession  or  enjoyment  to 
a  period  which,  after  a  generation  or  two,  ceased  to  be  within  the 
reach  of  evidence.  But,  here  again,  the  legislature  not  intervening, 
the  judges  provided  a  remedy  by  holding  that  if  the  proof  was  car- 
ried back  as  far  as  living  memory  would  go,' it  should  be  presumed 
that  the  right  claimed  had  existed  from  time  of  legal  memory;  that 
is  to  say,  from  the  time  of  Richard  I.  This  convenient  rule  having 
been  established,  the  judges  seem  not  to  have  thought  it  worth  while, 
when  the  Statute  of  31  Hen.  8,  c.  2,  was  passed,  by  which  in  a  v,rit 
of  right  the  time  was  limited  to  sixty  years,  to  apply,  l)y  an  analogous 


102  ANGUS    V.    DALTON  [CHAP.    II 

rise  of  tliat  Statute,  the  time  of  prescription  established  by  it  to 
actions  involving  rights  to  incorporeal  hereditaments. 

In  a  case  of  Bury  v.  Pope,  Cro.  Eliz.  118,  in  an  action  for  stopping 
lights,  according  to  the  report,  "  It  was  agreed  by  all  the  justices  that 
if  two  men  be  owners  of  two  parcels  of  land  adjoining,  and  one  of 
them  doth  build  a  house  upon  his  land,  and  makes  windows  and 
lights  looking  into  the  other's  lands,  and  the  house  and  the  lights 
have  continued  by  the  space  of  thirty  or  forty  years,  yet  the  other 
may  upon  his  own  land  and  soil  lawfully  erect  an  house  or  other 
things  against  the  said  lights  and  windows,  and  the  other  can  have 
no  action;  for  it  was  his  folly  to  build  his  house  so  near  to  the 
other's  land;  and  it  Avas  adjudged  accordingly." 

And  as  late  as  1  Car.  2,  it  was  held  in  a  case  of  Sury  v.  Piggott, 
Poph.  166,  that  to  maintain  an  action  for  obstructing  lights,  the  light 
must  be  prescribed  for  as  having  been  enjoyed  time  out  of  mind. 

But  the  Statute  of  Jac.  1,  c.  21,  which  limited  the  time  for  bring- 
ing a  possessory  action  to  twenty  years,  led  soon  afterwards  to  a  very 
important  change  in  the  law  by  the  arbitrary  adoption  of  that  period 
by  the  courts  as  sufficient  to  found  the  presumption  of  the  existence 
of  a  right  from  the  time  of  legal  memory.  Here,  again,  the  boldness 
of  judicial  decision  stepped  in  to  make  up  for  defects  in  the  law 
which  the  supineness  of  the  legislature  left  uncared  for.  But  it  is 
to  be  observed,  and  the  observation  is  specially  important  to  the 
present  purpose,  that  with  all  their  desire  to  reduce  the  period  of 
prescription  wathin  reasonable  limits,  the  courts  never  gave  greater 
effect  to  length  of  enjoyment  than  that  of  affording  a  presumption 
-^of  prescriptive  right,  capable  of  being  rebutted  by  proof  of  an  origin 
at  a  time  later  than  that  of  legal  memory.  Hence,  if  in  the  course 
of  a  cause  it  appeared  that  the  disputed  right  had  had  a  later  origin, 
the  presumption  failed,  and  the  claim  of  right  was  defeated. 

The  frequency  of  this  result  gave  rise  to  a  new  device.  As,  inde- 
pendently of  prescription,  every  incorporeal  hereditament  must  have 
had  its  origin  in  grant,  the  fiction  was  resorted  to  of  presuming  after 
long  user  a  grant  by  a  deed  which  in  the  lapse  of  time  had  been  lost. 
At  first,  to  raise  this  presumption  it  was  required  that  the  user  should 
be  carried  back  as  far  as  living  memory  would  go;  but  after  the  Stat- 
ute of  James,  user  for  twenty  years  was  —  here  again,  without  any 
warrant  of  legislative  authority,  and  by  the  arbitrary  ruling  of  the 
judges  —  held  to  be  sufficient  to  raise  this  presumption  of  a  lost 
grant,  and  juries  were  directed  so  to  find  in  cases  in  which  no  one 
had  the  faintest  belief  that  any  grant  had  ever  existed,  and  where 
the  presumption  was  known  to  be  a  mere  fiction.  Well  might  Sir 
W.  D.  Evans,  while  admitting  the  utility  of  this  doctrine,  say  that 
its  introduction  was  "  a  perversion  of  legal  principles  and  an  unwar- 
rantable assumption  of  authority."     2  Ev.  Poth.  139. 

Thus  the  law  remained  till  the  Act  of  2  &  3  Wm.  4,  c.  71,  was 
passed,  with  a  view  of  putting  an  end  to  the  scandal  on  the  adminis- 


SECT.  II.]  ANGUS    V.   DALTON  103 

tratiou  of  justice  which  arose  from  thus  forcing  the  consciences  of 
juries.     How  far  it  has  affected  this  purpose  will  be  seen  further  on. 

But  this  doctrine  of  presumption  from  user  or  enjoyment  under 
the  former  law  could  not,  according  to  the  highest  authorities,  be 
carried,  as  regarded  the  presumption  of  a  lost  grant,  any  more  than 
that  which  had  reference  to  the  existence  of  an  easement  beyond  time 
of  legal  memory,  further  than  that  of  a  presumption  capable  of  be- 
ing rebutted,  and  so  destroyed   [pages  102-106]   .  .  . 

I  am  very  far  from  saying  that  when  houses  or  buildings  have 
stood  for  many  years,  especially  when  they  appear  to  be  of  equal 
age,  the  presumption  of  a  reciprocal  easement  of  lateral  support 
ought  not  to  be  made.  It  may  reasonably  be  inferred  that  they  were 
built  under  any  of  the  circumstances  from  which,  at  the  present 
time,  a  grant  would  properly  be  implied.  Thus  they  may  have  been 
built  by  one  owner,  or  under  a  common  building  lease,  or  if  built  by 
different  owners,  where  some  arrangement  for  mutual  support  was 
come  to.  Thus,  had  the  plaintiffs'  pi*emises  remained  in  their 
original  condition,  I  should  have  been  prepared  to  make  the  neces- 
sary presumption  to  uphold  the  right.  Where  land  has  been  sold  hy 
the  owner  for  the  express  purpose  of  being  built  upon,  or  where,  from 
other  circumstances,  a  grant  can  reasonably  be  implied,  I  agree  that 
every  presumption  should  be  made  and  every  inference  should  be 
drawn  in  favor  of  such  an  easement,  short  of  presuming  a  grant 
when  it  is  undoubted  that  none  has  ever  existed.  But  in  the  absence 
of  any  such  circumstances  there  is  no  form  of  easement  in  which,  as 
it  seems  to  me,  the  doctrine  of  presumption  should  be  more  cautiously 
and  sparingly  applied  than  in  the  easement  of  lateral  support.  For 
this  easement  is  obviously  one  of  a  very  anomalous  character.  In 
every  other  form  of  easement  the  party  whose  right  as  owner  is 
prejudicially  affected  by  the  user  has  the  means  of  resisting  it  if 
illegally  exercised.  In  the  case  of  the  so-called  ''  affirmative  "  ease- 
ments he  can  bring  his  action,  or  oppose  physical  obstruction  to  the 
exercise  of  the  asserted  right.  Even  in  the  case  of  another  negative 
easement,  and  which  is  said  to  approach  the  more  nearly  to  this,  — 
that  of  light,  —  the  su])posed  analogy  entirely  fails.  For  although 
no  action  can  be  brought  against  a  neighboring  owner  for  opening 
windows  overlooking  the  land  of  another,  there  is  still  the  remedy, 
however  rude,  of  physical  obstruction  by  building  opj)Osite  to  them. 
But  against  the  acquisition  of  such  an  easement  as  the  one  here  in 
question  the  adjoining  owner  has  no  remedy  or  means  of  resistance, 
—  unless,  indeed,  he  should  excavate  in  his  own  immediately  adja- 
cent soil  while  the  neighboring  house  is  being  built  or  before  the 
easement  has  been  fully  acquired,  for  the  purjjose  of  causing  the 
house  to  fall.  But  what  would  be  thought  of  a  nuui  who  thus 
asserted  his  right?  Or,  possibly,  as  in  the  pi-cscnt  insfancc,  he  nuiy 
have  built  to  the  extremity  of  his  own  hind,  and  may  rcc^uirc  tlie  sup- 
port of  his  soil  to  uphold  his  own  house.      Is  he  lo  ciMlaiiiici'  and  per- 


104  ANGUS    V.    DALTON  [CHAP.    II 

haps  destroy  his  own  house  by  excavating  under  it  for  the  purpose 
of  preventing  his  neighbor  from  acquiring  the  right  of  support? 
The  question,  as  it  seems  to  me,  answers  itself.  To  say  that  by  rea- 
son of  an  adjoining  house  being  built  on  the  extremity  of  the  owner's 
soil  a  right  of  support  is  to  be  acquired  in  the  absence  of  any  grant 
or  assent,  express  or  implied,  against  the  adjacent  owner,  who  may 
be  altogether  ignorant  whether  the  house  or  other  building  is  sup- 
ported by  his  soil  or  not,  and  who,  whether  he  knows  it  or  not,  has 
no  means  of  resisting  the  acquisition  of  an  easement  against  himself, 
either  by  dissent  or  resistance  of  any  kind,  appears  to  me  to  be  repug- 
nant to  reason  and  common  sense,  as  well  as  to  the  first  principles  of 
justice  and  right. 

For  these  reasons  I  cannot  entertain  a  doubt  that  —  at  all  events 
as  the  law  stood  before  the  passing  of  the  Prescription  Act,  2  &  3 
Wm.  4,  c.  71  —  the  presumption  of  a  grant,  if  any,  arising  in  this 
case  from  the  support  to  the  plaintiffs'  premises  having  been  had 
for  the  twenty-seven  years,  was  open  to  be  rebutted;  and  that  when 
it  was  proved  —  or,  what  is  the  same  thing,  admitted  —  that  when 
the  plaintiffs'  premises  Avere  rebuilt  —  the  original  easement,  if 
any,  being,  as  I  have  already  pointed  out,  gone  —  the  assent  of  the 
^  defendants'  predecessors  was  not  asked  for  or  obtained  by  grant, 
or  in  any  other  way,  to  any  support  being  derived  from  their  soil, 
the  presumption  was  at  an  end  [pages  116-118]. 

[Mellor,  J.,  admitted  "  that  the  case  is  not  free  from  great  diffi- 
culties," (page  130),  but  entirely  agreed  with  the  Chief  Justice.] 

The  defendants  had  judgment. 

An  appeal  was  taken  to  the  Court  of  Appeal  (4  Q.  B.  D.  162), 
and  argued  in  May,  1878,  before  Brett,  Cotton,  and  Thesiqer, 
L.  JJ.,  by 

Thesiger,  L.  J.  [after  pointing  out  that  the  right  to  lateral  sup- 
port of  buildings  from  soil  occupied  an  intermediate  place  between 
the  right  to  the  support  of  soil  from  soil  and  the  right  to  the  support 
of  building  from  building,  and  that  it  was  not  a  right  of  property, 
continued  thus  :  — ] 

If,  then,  the  right  claimed  be  not  a  right  of  property,  is  it  an 
easement  which  can  be  acquired ;  and  if  it  can,  how  and  under  what 
circumstances  may  it  be  acquired?  That  it  is  a  right  or  easement, 
which  may  under  some  circumstances  be  acquired,  is  treated  as  clear 
law  by  a  long  series  of  authorities,  and  is  admitted  by  all  the  judg- 
ments in  the  court  below,  that  it  is  an  easement  not  coming  within 
the  Prescription  Act  appears  also  to  be  generally  admitted,  and  is 
assumed  by  me ;  that  it  is  a  right  or  easement,  which  must  be  founded 
upon  ''  prescription  or  grant  express  or  implied,"  is  a  proposition 
stated  in  terms  already  quoted  in  the  judgment  of  the  Court  of  Ex- 
chequer Chamber  in  Bonomi  v.  Bwl-house,  E.  B.  &  E.  646,  at  page 
6.55;  and  borne  out  by  the  geiionil  current  of  authority  upon  the  sub- 


bECT.  II.]  ANGUS    V.    DALTON  105 

ject  of  the  acquisition  of  easements.  I  cannot  therefore  accede  to 
the  view  suggested  by  Lush,  J.,  in  the  court  below,  that  an  absolute 
right  to  an  easement  uninterruptedly  enjoyed  for  twenty  years 
may  be  obtained  by  analogy  to  the  period  of  limitation  fixed  as  re- 
gards entry  on  lands  by  21  Jac.  1  c.  16.  It  may  be  that  the  com- 
mencement of  the  reign  of  Richard  I.  was  originally  fixed  as  the 
period  of  prescription  for  incorporeal  rights  by  analogy  to  the  Stat- 
ute 3  Edw.  1,  c.  39,  which  fixed  the  same  period  for  alleging  seisin 
in  a  real  action,  and  there  are  dicta  to  be  found  in  the  books  sup- 
porting the  view  that  as  a  matter  of  theoretical  law  the  same  analogy 
carried  with  it  an  alteration  as  regards  incorporeal  rights,  when  the 
period  of  sixty  years  was  fixed  for  a  writ  of  right,  and  fifty  years 
for  a  possessory  action  by  32  Hen.  8.  But  as  a  matter  of  practical 
law,  this  analogy  does  not  appear  to  have  been  extended  by  the  courts 
to  these  last-mentioned  Statutes.  The  reign  of  Richard  I.  still  re- 
mained the  time  to  Avhich  legal  memory  in  regard  to  easements  was 
supposed  to  relate,  and  although  the  later  Statute  of  21  Jac.  1, 
c.  16,  did  undoubtedly  suggest  to  the  minds  of  the  judges  the  pro- 
priety of  giving  to  twenty  years'  uninterrupted  enjoyment  of  incor- 
poreal rights  an  eifect  to  some  extent  at  least  commensurate  with  that 
produced  by  a  similar  enjoyment  of  land,  they  seem  to  have  been 
unwilling,  probably  for  good  reasons,  to  go  the  whole  length  of 
applying  the  Statute  by  analogy,  notwithstanding  that  if  they  had 
done  so  they  would  have  followed  the  example  set  them  by  their 
])redecessors  in  respect  of  the  Statute  of  Edward  I.  They  effected 
the  object  which  they  had  in  view  by  the  creation  of  the  fiction  of 
a  grant  made  and  lost  in  modern  times.  Such  a  fiction,  like  other 
fictions,  may  be  open  to  the  strictures  passed  upon  it,  although  I 
must  add  that  it  has  had  in  my  opinion  in  many  respects  a  beneficial 
operation,  and  is  after  all  but  an  extension  of  the  fiction  which  had 
previously  formed  the  basis  of  prescriptive  titles;  for  every  prescrip- 
tion imports  a  grant  which  in  most  cases  no  one  believes  in.  But 
whatever  may  be  the  merits  or  demerits  of  the  fiction,  it  is  too  late 
to  question  the  validity  of  its  introduction.  The  doctrine  of  lost 
grants  forms  parf  of  the  law  of  the  land,  and  any  dislike  which  may 
be  felt  for  this  and  like  fictions  cannot  be  allowed  to  interfere  Avith 
the  carrying  out  of  the  doctrines  involved  in  them  to  the  full  extent 
which  has  been  sanctioned  by  established  authority.  It  becomes 
necessary,  therefore,  in  the  first  place,  to  consider  the  character  and 
extent  of  the  presumption  of  a  lost  grant  as  applicable  to  easements 
generally,  and  then,  in  the  second  place,  to  see  in  what  respects,  if 
any,  a  difference  exists  in  regard  to  the  particular  easement  claimed 
in  this  action. 

And  first,  as  regards  easements  generally,  the  authorities  cited  in 
the  court  below  establish  that  this  prcsnnijjtion  is  not  a   prof(umptin  • 
juris  et  de  jure,  or,  to  use  other  language,   is  not  an   absolute  and 
conclusive  bar.     On  the  otlu  r  IuiihI.  flicsc  same  authorities  lav  down 


106  ANCiUS    V.    DALTON  [CHAP.    II 

that  the  uninterrupted  enjoyment  of  an  easement  for  twenty  years 
raises,  to  use  the  words  of  Lord  Mansfield,  in  Darwin  v.  Upton, 
2  Wms.'s  Notes  to  Saund.  506,  "  such  decisive  presumption  of  a  right 
by  grant  or  otherwise,  that  unless  contradicted  or  explained,  the  jury 
ought  to  believe  it ;  "  and  the  corollary  upon  this  proposition  is  stated 
by  Bayley,  J.,  in  Cross  v,  Lewis,  2  B.  &  C.  686,  where  he  says:  "I 
do  not  say  that  twenty  years.'  possession  confers  a  legal  right;  but 
uninterrupted  possession  for  twenty  years  raises  a  presumption  of 
right;  and  ever  since  the  decision  in  Darwin  v.  Upton  it  has  been 
held  that  in  the  absence  of  any  evidence  to  rebut  the  presumption,  a 
jury  should  be  told  to  act  upon  it."  What,  then,  is  the  nature  of  the 
evidence  which  would  be  held  to  "  contradict,"  "  explain,"  or  "  rebut  " 
this  decisive  presumption?  Proof  of  the  mere  origin  of  the  ease- 
ment Avithin  the  period  of  legal  memory  is  not  sufficient  for  this  pur- 
pose; it  was  to  meet  the  hardship  which  arose  from  such  proof  pre- 
venting the  acquisition  of  a  prescriptive  title  that  the  legal  fiction  of 
a  grant  made  and  lost  in  modern  times  was  invented;  neither  is  it 
sufficient  to  prove  such  circumstances  as  negative  an  actual  assent 
on  the  part  of  the  servient  owner  to  the  enjoyment  of  the  easement 
claimed,  or  even  evidence  of  dissent  short  of  actual  interruption  or 
obstruction  to  the  enjoyment.  See  Cross  v.  Lewis,  2  B.  &  C.  686,  at 
page  689,  where  Bayley,  J.,  speaking  of  the  case  of  opening  windows, 
says :  "  If  his  neighbor  objects  to  them,  he  may  put  up  an  obstruc- 
tion; but  that  is  his  only  remedy,  and  if  he  allows  them  to  remain 
unobstructed  for  twenty  years,  that  is  a  sufficient  foundation  for  the 
presumption  of  an  agreement  not  to  obstruct  them."  Again,  proof 
that  the  dominant  and  servient  tenement  were  originally  in  one 
ownership,  and  were  separated  under  such  circumstances  as  to  nega- 
tive the  presumption  of  any  reservation  or  grant  of  the  easement 
claimed  having  actually  been  made  at  the  time  of  the  separation, 
would  not  be  sufiicient  to  prevent  the  presumption  arising  in  a  case 
where  the  enjoyment  has  been  uninterrupted  for  twenty  years;  see 
Livett  V.  Wilson,  3  Bing.  115,  where,  although  it  was  proved  that  the 
two  tenements  were  separated  by  a  deed  containing  no  grant  or 
reservation  of  the  easement  claimed,  the  court  did  not  rely  upon  this 
fact  as  supporting  the  verdict  of  the  jury  negativing  the  presumption 
of  a  lost  deed,  but  took  as  their  ground  the  contested  character  of 
the  user.  In  harmony,  as  it  appears  to  me,  with  the  last  proposition, 
is  the  further  proposition  that  the  presumption  cannot  be  rebutted 
by  mere  proof  of  the  owner  of  the  servient  tenement  that  no  grant 
was  in  fact  made  either  at  the  commencement  or  during  the  continu- 
ance of  the  enjoyment.  I  am  not  aware  that  this  proposition  has 
been  in  terms  directly  decided,  but  it  is  almost  impossible  to  sup- 
pose that  among  the  numerous  cases  in  which  easements  have  been 
held  by  the  courts  to  have  been  acquired  by  uninterrupted  user  for 
twenty  years  only,  there  must  not  have  been  many  in  which  the 
owner  of  the  servient  tenement  at  the  time  when  the  period  com- 


SECT.  II.]  ANGUS    V.    DALTON  107 

menced  was  alive  when  the  action  was  tried  to  contradict,  if  such 
evidence  had  been  admissible,  the  fact  of  a  grant ;  and  if  such  evi- 
dence were  admissible,  it  is  almost  inconceivable  that  in  the  numer- 
ous cases  in  which  questions  of  casements  have  been  discussed,  no 
trace  of  an  opinion  to  that  effect  should  be  found  in  the  observations 
of  the  judges.  The  correct  view  upon  this  point  I  take  to  be,  that 
the  presumption  of  acquiescence  and  the  fiction  of  an  agreement  or 
grant  deduced  therefrom  in  a  case  where  enjoyment  of  an  easement 
has  been  for  a  sufficient  period  uninterrupted,  is  in  the  nature  of- 
an  estoppel  by  conduct,  which,  while  it  is  not  conclusive  so  far  as  to 
prevent  denial  or  explanation  of  the  conduct,  presents  a  bar  to  any 
simple  denial  of  the  fact,  which  is  merely  the  legal  inference  drawn 
from  the  conduct.  If,  instead  of  its  being  a  mere  legal  inference, 
the  courts  had  considered  that  it  was  an  inference  of  fact  to  be  drawn 
by  juries  like  other  inferences  of  fact,  and  in  respect  of  which  the 
servient  owner  might  be  called  as  a  witness  to  negative  the  fact  by 
denial  of  a  grant  ever  having  been  made,  it  is  difficult  to  understand 
how  judges  could  have  systematically,  as  the  Lord  Chief  Justice 
admits  they  did,  directed  juries  to  find  grants  "  in  cases  in  which 
no  one  had  the  faintest  belief  that  any  grant  had  ever  existed,  and 
where  the  presumption  was  known  to  be  a  more  fiction."  3  Q.  B.  D. 
105.  The  case  of  Campbell  v.  Wilson,  3  East,  294,  lends  support  to 
my  view  upon  this  point,  and  illustrates  to  some  extent  my  meaning 
when  I  speak  of  explanation  of  the  conduct,  which  is  relied  upon  as 
leading  to  the  presumption  of  a  grant.  There,  under  an  award  made 
twenty-seven  years  before  action,  all  rights  of  way  in  a  ])nrticular 
locality,  except  those  set  out  in  the  award,  of  which  the  way  in  dis- 
pute in  the  action  was  not  one,  had  been  ex'tinguishod.  The  facts 
of  the  case  pointed  so  strongly  to  the  use  of  the  way  in  question 
having  originated  in  a  mistaken  acting  under  the  award,  that  the 
judge  in  his  summing  up  almost  assumed  the  fact;  but,  having  ruled 
also  that  notwithstanding  it,  the  proof  of  subsequent  user  as  of  right 
was  sufficient  to  raise  the  presumption  of  a  grant,  and  the  jury 
having  found  in  favor  of  the  defendant,  who  claimed  the  way,  the 
court  supported  both  the  ruling  and  the  finding;  and  Le  Blanc,  J., 
said :  "  Unless  the  jury  could,  in  the  words  of  the  report,  refer  the 
enjoyment  for  so  long  a  time  to  leave,  favor,  or  otherwise  than  under 
a  claim  or  assertion  of  right,  and  indeed,  unless  it  could  be  referred 
to  something  else  than  adverse  possession,  I  think  such  length  of 
enjoyment  is  so  strong  evidence  of  a  right  that  the  jury  should  not 
be  directed  to  consider  small  circumstances  as  founding  a  presump- 
tion that  it  arose  otherwise  than  by  grant."  The  direction  of  the 
Lord  Chief  Justice  himself  to  the  jury  in  the  case  of  Rogers  v. 
Taylor,  2  H.  &  N.  828,  to  which  I  shall  have  to  refer  again,  still 
further  supports  my  view.  But  while  the  cases  which  I  have  cited 
throw  light  upon  the  point  as  to  what  circumstances  will  not  nega- 
tive the  presumption  of  a  grant  arising  from  uninterrupted  enjoy- 


108  ANGUS    V.    DALTON  [CHAP.    II 

ment  for  twenty  years,  still  further  light  is  thrown  upou  the  sub- 
ject by  a  consideration  of  cases  cited  in  the  court  below,  in  which 
the  presumption  was  held  to  have  been  properly  rebutted.  The 
case  of  Barl-er  v.  Richardson,  4  B.  &  A.  579,  was  one  in  which  the 
owner  of  the  servient  tenement,  a  rector,  tenant  for  life,  was  incom- 
petent to  make  a  grant,  and  it  was  held,  therefore,  that  a  grant  by 
him  could  not  be  presumed.  ^In  Wehh  v.  Bird,  13  C.  B.  N,  S.  841, 
which  was  the  case  of  a  claim,  as  stated  in  the  declaration,  to  the 
enjoyment  as  of  right  of  the  "  benefit  and  advantage  of  the  streams 
and  currents  of  air  and  wind  which  had  used  to  pass,  run,  and  flow 
from  the  west  unto  a  windmill,"  and  which  enjoyment  was  alleged 
to  have  been  interrupted  by  the  building  of  a  school-house  twenty-five 
yards  to  the  west  of  the  windmill,  Wightman,  J.,  in  delivering  the 
judgment  of  the  Court  of  Exchequer  Chamber,  said  as  follows : 
"  In  the  present  case  it  would  be  practically  so  difficult,  even  if  not 
absolutely  impossible,  to  interfere  with  or  prevent  the  exercise  of 
the  right  claimed,  subject,  as  it  must  be,  to  so  much  variation  and 
uncertainty,  as  pointed  out  in  the  judgment  below,  that  we  think 
it  clear  that  no  presumption  of  a  grant,  or  easement  in  the  nature 
of  a  grant,  can  be  raised  from  the  non-interruption  of  the  exercise 
of  what  is  called  a  right  by  the  person  against  whom  it  is  claimed, 
as  a  non-interruption  by  one  who  might  prevent  or  interrupt  it  " 
(page  843).  Again,  in  Chasemore  v.  Richards,  7  H.  L.  C.  349,  a 
claim  was  made  to  underground  water,  which  merely  percolated 
through  the  strata  in  no  known  channels,  and  it  was  held  by  the 
House  of  Lords  that  the  claim  could  not  be  supported  as  a  right  of 
property,  and  that  looking  to  the  casual  and  uncertain,  as  well  as 
secret  character  of  the' enjoyment  of  such  water,  no  grant  of  an  ease- 
ment could  be  presumed. 

These  cases,  therefore,  as  direct  authorities,  go  no  further  than  to 
show  that  a  legal  incompetence  as  regards  the  owner  of  the  servient 
tenement  to  grant  an  easement,  or  a  physical  incapacity  of  being 
obstructed  as  regards  the  easement  itself,  or  an  uncertainty  and 
secrecy  of  enjoyment  putting  it  out  of  the  category  of  all  ordinary 
known  easements,  will  prevent  the  presumption  of  an  easement  by  lost 
grant ;  and  on  the  other  hand,  indirectly  they  tend  to  support  the  vieAv 
that  as  a  general  rule  where  no  such  legal  incompetence,  physical 
incapacity,  or  peculiarity  of  enjoyment,  as  was  shown  in  those  cases, 
exists,  uninterrupted  and  unexplained  user  will  raise  the  presumption 
of  a  grant,  upon  the  principle  expressed  by  the  maxim.  Qui  non  pro- 
hibet  quod  prohihere  potest  assentire  videtur. 

[He  then,  after  an  examination  of  the  cases,  held  that  an  ease- 
ment for  lateral  support  for  buildings  from  adjoining  soil  though 
peculiar  in  character  was  in  the  same  category  as  other  easements 
from  the  point  of  view  of  acquisition  by  prescription;  that  a  user 
which  is  secret  raised  no  presumption  of  acquiescence;  and  that  the 
,  question  of  notice  to  the  owner  of  the  servient  tenement,  which  was 


SECT.  II.]  WEBB    V.    BIRD  109 

by  the  ruling  of  Lush,  J.,  in  effect  withdrawn  from  the  jury,  was 
material  (pages  175-184).  Cottox,  L.  J.,  agreed  substantially  with 
Thesic.er,  L.  J.;  Brett,  L.  J.,  dissented.]         Judgment  reversed.^ 

[From  this  judgment  the  defendants  appealed  to  the  House  of 
Lords,  where  the  judgment  of  the  Court  of  Appeal  Avas  affirmed. 
6  Ap.  Cas.  740.] 


WEBB  V.  BIRD 

13  C.  B.  N.  S.  841.     1863. 

WiGHTMAN,  J.^  We  took  time  for  the  consideration  of  this  case  on 
account  of  its  novel  character.  It  appears  by  the  finding  of  the 
arbitrator  to  whom  the  case  was  referred  by  order  of  Xisi  Prius, 
that  the  plaintiff  Avas  the  owner  and  occupier  of  a  windmill  built  in 
1829;  that,  from  the  time  of  its  being  built,  down  to  1860,  the  occu- 
pier had  enjoyed  as  of  right  and  without  interruption  the  use  and 
l)enefit  of  a  free  current  of  air  from  the  Avest  for  the  working  of  the 
mill;  that,  in  the  last-mentioned  year,  18(30,  the  defendants  erected 
a  school-house  Avithin  tAventy-five  yards  of  the  mill,  and  thereby 
obstructed  the  current  of  air  which  Avould  liaA-e  come  to  it  from  the 
Avest,  Avhereby  the  Avorking  of  the  mill  was  hindered,  and  the  mill 
became  injured  and  deteriorated  in  value.  Tavo  cases  Avere  cited 
and  mainly  relied  on  for  the  plaintiff,  —  one  in  the  2  Belle's  Abridg- 
ment, p.  704,  and  the  other  in  16  Viner's  Abridgment,  tit.  N usance 
(G),  pi.  19;  but  both  are  shortly  stated,  and  amount  to  little  more 
than  dicta:  and  it  does  not  ap])ear  that  they  are  anywhere  else  re- 
ported, or  in  Avhat  manner  or  the  terms  in  Avhich  such  a  right  Avas 
claimed,  Avhether  by  prescription  or  otherwise.  There  is  a  third 
case,  called  T rah  em's  Case,  Godbolt,  233,  Avhich  Avas  the  case  of  a 
nuisance  caused  by  building  a  house  so  near  as  to  hinder  the  Avork- 
ing  of  the  plaintiff's  mill;  and  the  judgment  of  the  court  appears  in 
the  first  instance  to  have  been  like  that  of  the  case  in  Kolle's  Abridg- 
ment, that  so  much  of  the  house  should  be  tlirown  down  as  hindered 
the  Avorking  of  the  mill.  But,  the  plaintiff  contending  that  the 
whole  house  should  be  thrown  doAvn,  the  case  was  adjourned,  and  no 
ultimate  decision  appears  to  have  been  giA^en.  These  arc  all  the 
autliorities  Avhich  Ave  haA'e  been  able  to  find  upon  the  subject. 

We  agree  Avith  the  opinion  of  the  Court  of  Common  Pleas  that  the 
right  to  the  passage  of  air  is  not  a  right  to  an  easement  Avithin  the 
meaning  of  the  2  iS:  3  W.  4,  r.  71,  §  2, 

1  The  order  of  the  Court  of  Appeal  directed  that  the  defendants  should 
elect  within  fourteen  days  whether  tliey  wouKl  take  a  new  trial,  and  if  they 
(hd  not  so  elect,  that  judgment  should  be  entered  for  the  iilaiiitilTs  for  the 
amount  of  damages  assessed  by  the  special   referee. 

-  The  case  was  argued  before  Wichtm.xn,  J..  Bhamwell,  B.,  Channell, 
B.,  Bl.\ckburn,  J.,  and  Wilde,  B.    The  opinion  only  is  given. 


110  WEBB    V.    BIRD  [CHAP.    II 

The  mill  was  built  in  ISii!),  and  so  the  claim  cannot  be  by  pre- 
scription. 

The  distinction  between  easements,  properly  so  called,  and  the  right 
to  light  and  air,  has  been  pointed  out  by  Littledale,  J.,  in  Moore  v. 
Rawson,  3  B.  (&  C.  332,  340 ;  5  D.  &  K.  234. 

It  remains,  therefore,  to  be  considered,  whether,  independently  of 
the  Statute,  the  right  claimed  may  be  supported  upon  the  presumption 
of  a  grant  arising  from  the  uninterrupted  enjoyment  as  of  right  for 
a  certain  term  of  years.  We  think,  in  accordance  with  the  judgment 
of  the  Court  of  Common  Pleas,  and  the  judgment  of  the  House  of 
Lords  in  Chasemo7-e  v.  Richards,  7  House  of  Lords  Cases,  349,  that 
the  presumption  of  a  grant  from  long-continued  enjoyment  only 
arises  where  the  person  against  whom  the  right  is  claimed  might 
have  interrupted  or  prevented  the  exercise  of  the  subject  of  the  sup- 
posed grant.  As  was  observed  by  Lord  Wensleydale,  it  was  going 
very  far  to  say  that  a  man  must  go  to  the  expense  of  putting  up  a 
screen  to  window-lights,  to  prevent  a  right  being  gained  by  twenty 
years'  enjoyment.  But,  in  that  case,  the  right  claimed,  which  was 
the  percolating  of  water  underground,  went  far  beyond  the  case  of 
a  window.  In  the  present  case,  it  would  be  practically  so  difficult, 
even  if  not  absolutely  impossible,  to  interfere  with  or  prevent  the 
exercise  of  the  right  claimed,  subject,  as  it  must  be,  to  so  much 
variation  and  uncertainty,  as  pointed  out  in  the  judgment  below, 
that  we  think  it  clear  that  no  presumption  of  a  grant,  or  easement 
in  the  nature  of  a  grant,  can  be  raised  from  the  non-interruption  of 
the  exercise  of  what  is  called  a  right  by  the  person  against  whom 
it  is  claimed,  as  a  non-interruption  by  one  who  might  prevent  or 
interrupt  it. 

We  are  therefore  of  opinion  that  the  judgment  of  the  court  below 
should  be  affirmed. 

Blackburn,  J.  I  perfectly  concur  in  the  judgment,  but  wish,  for 
myself,  to  guard  against  its  being  supposed  that  anything  in  the 
judgment  affects  the  common-law  right  that  may  be  acquired  to  the 
access  of  light  and  air  through  a  window,  or  to  the  right  to  support 
by  an  ancient  building  from  those  adjacent.  I  agree  with  my 
brother  Willes,  in  the  court  below,  that  the  case  of  the  right  to  light, 
before  the  Statute,  stood  on  a  peculiar  ground. 

Judgment  ajfirmed} 

1  Compare  Chastey  v.  Ackland,  [1895]  2  Ch.  389.  See  Whitr  v.  Chapin, 
12  All.  (Mass.)  516;  Swett  v.  Cutts,  50  N.  H.  439;  Whcelock  v.  Jacobs,  70  Vt. 
162;  Chasemore  v.  Richards,  7  H.  L.  Cas.  349. 


SECT.  II.]  DANIEL    V.    NORTH  111 


DANIEL  V.  NORTH 

11  East  372.     1809. 

The  plaintiff  declared  in  case,  upon  his  seisin  in  fee  of  a  certain 
messuage  or  dwelling-house  in  Stockport,  on  one  side  of  which  there 
is  and  was  and  of  right  ought  to  be  six  windows;  and  stated  that  the 
defendant  wrongfvdly  erected  a  wall  60  feet  high  and  50  in  length 
near  the  said  house  and  windows,  and  obstructed  the  light  and  air 
from  entering  the  same,  <tc.  At  the  trial  before  the  Chief  Justice 
of  Chester  it  appeared  that  the  plaintiff's  premises,  which  adjoined 
those  of  the  defendant,  were  in  1787  altered  by  the  then  occupier, 
and  the  windows  in  question  (though  somewhat  altered  since)  were 
then  put  out  towards  the  defendant's  premises;  and  such  windows 
then  received  the  light  and  air  freely  over  a  low  bakehouse,  which 
was  before  that  time,  and  continued  till  within  the  last  three  years 
to  be,  tenanted  by  one  Ashgrove,  under  Sir  George  Warrender,  from 
whom  the  present  defendant  claimed;  upon  the  site  of  which  bake- 
house the  defendant,  who  succeeded  Ashgrove,  built  the  erection  com- 
plained of  about  two  years  ago,  which  Avas  considerably  higher  than 
the  old  bakehouse,  and  darkened  some  of  the  plaintiff's  windows; 
but  Avould  have  been  no  injury  to  the  plaintiff's  premises,  if  they  had 
continued  in  their  original  state,  before  the  alterations  which  took 
place  while  Ashgrove  rented  under  Sir  George  Warrender  the  prem- 
ises now  held  by  the  defendant.  There  was  other  evidence  given 
at  the  trial;  but  ultimately  the  question  made  then,  and  afterwards 
argued  before  this  court,  was  whether  Sir  George  Warrender,  the 
then  reversioner  of  the  premises  occupied  by  Ashgrove,  were  bound 
by  his  tenant's  acquiescence  for  above  twenty  years  in  the  windows 
put  out  by  the  then  occupier  of  the  plaintiff's  premises  against 
the  defendant's  premises.  It  was  insisted  at  the  trial  that  the  de- 
fendant, standing  in  the  place  of  the  reversioner,  was  not  bound  by 
such  acquiescence  of  the  former  tenant;  but  this  was  overruled  by 
tbe  court  below,  and  the  plaintiff  recovered  a  verdict. 

Lord  Ellenborough,  C.  J.  The  foundation  of  presuming  a  grant 
against  any  party  is,  that  the  exercise  of  the  adverse  right  on  which 
such  presumption  is  founded  was  against  the  party  capable  of  making 
the  grant;  and  that  cannot  he  presumed  against  him  unless  there  were 
some  probable  means  of  his  knowing  what  was  done  against  him. 
And  it  cannot  be  laid  down  as  a  rule  of  laAV,  that  the  enjoyment  of 
the  plaintiff's  windows  during  the  occupation  of  the  opposite  prem- 
ises by  the  tenant  of  Sir  George  Warrender,  though  for  twenty  years, 
without  the  knowledge  of  the  landlord,  will  bind  the  latter.  And 
there  is  uo  evidence  stated  in  the  report  from  whence  his  knowledge 
should  be  presumed. 


112  DANIEL    V.    NORTH  [CHAP.    II 

Gkose,  J.,  of  the  same  opinion. 

Le  Blanp,  J.  The  ohjection  was  taken  at  the  trial,  that  the  land- 
lord was  not  bound  by  the  acquiescence  of  his  tenant,  without  his 
knowledge,  though  for  twenty  years;  but  that  was  overruled,  and  it 
was  considered  as  a  rule  of  law  that  the  landlord  was  so  bound.  It 
is  true,  that  presumptions  are  sometimes  made  against  the  owners 
of  land,  during  the  possession  and  by  the  acquiescence  of  their 
tenants,  as  in  the  instances  alluded  to  of  rights  of  way  and  of  com- 
mon; but  that  happens,  because  the  tenant  suffers  an  immediate 
and  palpable  injury  to  his  own  possession,  and  therefore  is  presumed 
to  be  upon  the  alert  to  guard  the  rights  of  his  landlord  as  well  as  his 
own,  and  to  make  common  cause  with  him;  but  the  same  cannot  be 
said  of  lights  put  out  by  the  neighbors  of  the  tenant,  in  which  he  may 
probably  take  no  concern,  as  he  may  have  no  immediate  interest 
at  stake. 

Bayley,  J.  The  tenant  cannot  bind  the  inheritance  in  this  case, 
either  by  his  own  positive  act  or  by  his  neglect.  If  indeed  the  land- 
lord had  known  of  these  windows  having  been  put  out,  and  had 
acquiesced  in  it  for  twenty  years,  that  would  have  bound  him;  but 
here  there  was  no  evidence  that  he  knew  of  it  till  within  the  last 
two  years.  Rule  absolute.^ 

1  In  Barker  v.  Richardson,  4  B.  &  Aid.  579,  the  defendants  had  erected  on 
land  adjoining  the  plaintiff's  a  building  which  darkened  certain  windows  of 
the  plaintiff.  These  windows  had  existed  for  more  than  twenty  years,  but 
during  ail  but  six  of  these  j^ears  the  defendant's  land  had  been  in  possession 
of  the  rector  of  Saint  Edmund  as  tenant  for  life, 

The  court  held  that  no  easement  for  light  and  air  to  the  plaintiff's  win- 
dows had  been  acquired.  Abbott,  C.  J.,  said,  page  582: — "Admitting  that 
twenty  years'  uninterrupted  possession  of  an  easement  is  generally  .sufficient 
to  raise  a  presumption  of  a  grant,  in  this  case,  the  grant,  if  presumed,  must 
have  been  made  by  a  tenant  for  life,  who  had  no  power  to  bind  his  successor; 
the  grant,  therefore,  would  be  invalid,  and  consequently,  the  present  plaintiff 
could  derive  no  benefit  from  it,  against  those  to  whom  the  glebe  has  been 
sold."    See  Bright  v.  Walker,  1  Cr.  M.  &  R.  211. 

In  Cross  v.  Lewis,  2  B.  &  C,  686,  the  plaintiff  claimed  an  easement 
over  defendant's  land  for  light  and  air  to  windows  which  had  existed  for  at 
least  thirty-eight  years.  It  was  shown  that  defendant's  land  had  been  in 
the  possession  of  a  tenant  for  twenty  of  these  years,  but  it  was  not  shown 
that  it  was  so  possessed  at  the  time  the  windows  were  erected.  Held,  that, 
as  the  windows  existed  before  the  tenancy  began,  the  plaintiff  was  entitled  to 
the  easement  claimed.  Ballard  v.  Demnion,  156  Ma.ss.  449;  Ring  v.  Pugsley, 
18  N.  Bruns.  303,  319,  accord. 

In  Datnes  v.  Stephens,  7  C.  &  P.,  570,  the  defendant  relied  on  an 
alleged  public  right  of  way  over  the  plaintiff's  land.  Lord  Denm.\n,  in  sum- 
ming up  to  the  jury,  said,  page  571 :  "  All  the  acts  of  user  seem  to  have 
taken  place  during  the  occupation  of  tenants,  and  their  submitting  to  them 
cannot  bind  the  owner  of  the  land  without  proof  of  his  also  being  aware  of 
it;  but  still,  if  you  think  that  such  acts  of  user  went  on  for  a  great  length  of 
time,  you  may  presume  that  the  owner  had  beep  made  aware  of  them." 
See  Baxter  v.  Taylor,  4  B.  &  Adol.  72. 

In  Reimer  v.  Stubcr.  20  Pa.  4.58.  the  coin-t  said.  p.  463:  — 

"  Where  a  tenant  for  years  or  for  life  grants  an  easement,  such  grant  is 


SECT.  II.]  DANIEL  V.    NORTH  113 

of  no  force  or  validity  against  the  reversioner  or  remainderman.  So,  if  the 
tenant  of  a  particular  estate  suffer  an  easement  to  be  enjo\ed  for  twenty-one 
years,  it  raises  no  presumption  of  a  grant  by  him  in  remainder  or  reversion. 
But  here  the  land  was  occupied  by  tenants  from  year  to  year.  The  owner 
of  the  fee  was  in  possession  and  had  the  right  to  bring  suit  every  j-ear.  The 
case  is  wholly  different  from  that  of  one  who  is  out  of  possession  during  the' 
whole  of  the  time." 

See  Pierre  v.  Femald,  26  Me.  436,  442;  Ward  v.  Warren,  82  N.  Y. 
265;  Stahl'v.  Buffalo  Ry.  Co.,  262  Pa.  493;  Cunningham  v.  Dorsey,  3  W.  Va. 
293,  307;  Pcntland  v.  Keep,  41   Wis.  490. 

In  Lund  v.  New  Bedjord,  121  Mass.  286,  the  plaintiff  was  the  owner  of  a 
certain  mill  and  mill  privilege.  He  had  agreed  to  convey  the  estate  to  other 
persons  who  were  in  occupation  of  it.  Mokton,  J.,  said,  page  290:  "Until 
the  conveyance  they  occupy  it  as  his  tenants,  and  the  reversion  is  in  him. 
For  any  temporary  trespass,  which  injures  only  the  present  enjoyment  of  the 
estate,  he  cannot  recover.  But  for  any  injury  to  his  reversion  he  is  entitled 
to  maintain  an  action. 

"  It  is  a  settled  rule,  that  where  an  act  is  done  which  violates  the  rights 
of  any  one,  and  which  is  of  such  a  nature  that,  if  it  be  continued  for  a  suffi- 
cient period  of  time,  the  wrong-doer  may  acquire  a  title  by  adver.se  posses- 
sion or  presumption  of  a  grant,  the  person  whose  rights  are  violated  may 
maintain  an  action  therefor  without  proof  of  any  other  actual  damages. 
...  In  this  case,  the  defendant  has  constructed  permanent  conduits  and 
other  works  for  the  purpose  of  supplying  the  city  with  water,  and  has  with- 
drawn and  is  constantly  withdrawing  large  quantities  of  water  to  the  injury 
of  the  plaintiff's  mill  privilege,  under  a  claim  of  right.  If  its  acts  are 
acquiesced  in  for  a  sufficient  length  of  time,  it  might  give  the  defendant  a 
title  by  adverse  possession.  For  this  invasion  of  his  right,  the  plaintiff  Lund 
may  maintain  an  action  without  proof  of  other  actual  damage." 

"  Remedies  for  Interference  with  Natural  Rights  and  Disturbance  of 
Easements.  A.  On  the  right  of  action  by  the  possessor  of  land  to  which 
a  natural  right  is  incident  or  to  which  an  easement  is  appurtenant,  although 
he  is  not  at  the  time  of  the  interference  actually  enjoying  the  right  or 
easement,  see: 

1.  As  to  natural  rights:  Sturges  v.  Br^dgman,  11  Ch.  D.  852;  Dana  v. 
Valentine,  5  Met.  8;  Sampson  v.  Hoddinott,  1  C.  B.  (n.  s.)  590;  Crossley 
V.  Lightoivler,  L.  R.  2  Ch.  478;  Pennington  v.  Brinsop  Hall  Coal  Co.,  5  Ch. 
D.  769,  772;  Harrop  v.  Hirxt,  L.  R.  4  Ex.  43;  Roberts  v.  Gwyrjai  District 
Council,  [1899J  1  Ch.  583;  Blodgett  v.  Stone,  60  N.  H.  167. 

2.  As  to  easements:  Bower  v.  Hill,  1  Bing.  N.  C.  549;  Moore  v.  Hall, 
3  Q.  B.  D.  178;  Aynsley  v.  Clover,  L.  R.  18  Eq.  544;  Collins  v.  St.  Peters, 
65  Vt.  618. 

It  is  no  answer  by  the  defendant  to  say  that  others  are  doing  a  similar 
wrong.     Crossley  v.  Lightowler,  supra;  Rogers  v.  Stewart,  5  Vt.  215. 

B.    On  the  right  of  a  reversioner  to  sue: 

Merely  showing  an  interference  with  the  natural  right  or  the  easement 
is  not  enough;  he  must  show  an  injury  to  the  reversion.  The  difficulty  lies 
in  determining  whether  such  an  injury  is  shown.  It  is  often  said  that  the 
distinction  is  between  an  injury  of  a  permanent  character  and  one  simply 
temporary.  A  permanent  injury  was  found  and  a  remedy  given  to  the  re- 
versioner in  Jesscr  v.  Gifford,  4"Burr.  2141;  Bell  v.  Midland  R.  Co.,  10  C.  B. 
(n.  s.)  287;  May  fair  Propty.  Co.  v.  Johnston,  (1894).  1  Ch.  508;  Baker  v. 
Sanderson,  3  Pick.  348;  Lund  v.  New  Bedford.  121  Mass.  286;  Hine  v.  N.  Y. 
Elevated  R.  R.  Co.,  128  N.  Y.  571;  Kernochan  v.  Manhattan  R.  R.  Co.,  161 
N.  Y.  339.  Kidkill  v.  Moor,  9  C.  B.  364,  came  up  on  motion  in  arrest  of 
judgment.  A  temporary  injury  only  was  considered  as  shown  in  Simpson 
V.  Savage,  C.  B.  (n.  s.)  347;  Matt  v.  Shoolbrcd,  L.  R.  20  Eq.  22;   Cooper 


114  WHEATON    V.    MAPLE    &    CO.  [CHAP.    II 

WHEATON  V.  MAPLE  &  CO. 

[1893]  3  Ch.  48.     1893. 

LiNDLEY,  L.  J.^  The  question  raised  by  this  appeal  is  whether  the 
plaintiff  is  entitled  to  an  easement  of  light  over  the  land  of  the  de- 
fendants. The  material  facts  are  as  follows :  The  defendants'  land 
is  Crown  property.  In  1826  a  lease  of  it  was  granted  by  the  Crown 
for  ninety-nine  years  from  1815.  This  lease,  therefore,  if  not  pre- 
viously determined,  would  expire  in  1914.  In  1891  this  lease  became 
vested  in  the  defendants.  On  the  5th  of  September,  1892,  they  sur- 
rendered it  to  the  Crown,  and  the  Crown  agreed  to  grant  them  a  new 
lease  of  the  same  land  on  certain  terms ;  and  the  defendants  agreed  to 
erect  a  new  building  on  the  land.  By  this  agreement  the  defendants 
are  to  be  responsible  for,  and  are  to  make  compensation  for,  all 
damage  which  may  be  done  with  respect  to  (inter  alia)  all  rights 
of  air  and  light  which  any  person  may  have  over  the  land.  Under 
this  agreement   the  defendants  are  erecting  the  building  of  which 


V.  Crabtree,  20  Ch.  D.  589.     Cf.  Johnstone  v.  HaU,  2  K.  &  J.  414. 

These  principles  apply  to  cases  of  tenancies  at  will.  Hastings  v.  Liver- 
more,  7  Gray,  194. 

On  the  analogous  question  whether  in  an  action  for  a  nuisance  or  the 
disturbance  of  an  easement,  entire  damages  are  recoverable  in  one  action 
or  only  compensation  to  the  date  of  the  writ,  see  Sedgwick,  Damages  (8th 
ed.),  §§  91-95."    2  Gray,  Gas.  on  Prop.,  2d  ed.,  p.  255. 

1  Only  the  opinion  of  Lindley,  L.  J.,  is  given. 

The  sections  of  the  Prescription  Act  (2  &  3  Wm.  IV.  c.  71)  mentioned  in 
the  opinion  are  as  follows: 

"  II.  No  claim  which  may  be  lawfully  made  at  the  common  law,  by  custom, 
prescription,  or  grant,  to  any  way  or  other  easement,  over,  or  to  any  water- 
course, or  the  use  of  any  water,  to  be  enjoyed  or  derived  upon,  or  from  any 
land  or  water  of  our  said  Lord  the  King,  his  heirs  or  successors  .  .  .  when 
such  way  or  other  matter  as  herein  last  before  mentioned  shall  have  been 
actually  enjoyed  by  any  person  claiming  right  thereto  without  interruption 
for  the  full  period  of  twenty  years,  shall  be  defeated  or  destroyed  by  shewing 
only  that  such  way  or  other  matter  was  first  enjoyed  at  any  time  prior  to  such 
period  of  twenty  years,  but  nevertheless  such  claim  may  be  defeated  in  any 
other  way  by  which  the  same  is  now  liable  to  be  defeated;  and  where  such 
waj^  or  other  matter  as  herein  last  before  mentioned  shall  have  been  so  en- 
joyed as  aforesaid  for  the  full  period  of  forty  years,  the  right  thereto  shall 
be  deemed  absolute  and  indefeasible,  unless  it  shall  appear  that  the  same 
/■was  enjoyed  by  some  consent  or  agreement  expresslj^  given  or  made  for  that 
purpose  by  deed  or  writing. 

"  III.  When  the  access  and  use  of  light  to  and  for  any  dwelling-house, 
workshop,  or  other  building  shall  have  been  actually  enjoyed  therewith  for 
the  full  period  of  twenty  years  without  interruption,  the  right  thereto  shall 
be  deemed  absolute  and  indefeasible,  any  local  usage  or  custom  to  the  con- 
trary notwithstanding,  unless  it  shall  appear  that  the  same  was  enjoyed  by 
some  consent  or  agreement  expressly  made  or  given  for  that  purpose  by  deed 
or  writing." 


SECT.  II.]  WHEATON    V.    MAPLE    &    CO.  115 

the  plaintiff  complains.  The  plaintiff  is  the  owner  in  fee  of  land 
adjoining  the  defendants'  land.  The  plaintiff  acquired  his  title  in 
July,  1852,  and  he  then  built  the  house  which  he  seeks  to  protect. 
He  and  his  tenants  have  enjoyed  access  of  light  to  that  house  for  more 
than  forty  years  without  interruption.  The  light  so  enjoyed  will 
be  interfered  with  by  the  defendants'  new  building.  The  plaintiff 
issued  his  writ  in  this  action  in  March,  1893  —  i.  e.,  more  than  forty 
years  after  the  commencement  of  his  enjoyment,  but  within  three 
years  after  the  termination  of  the  Crown  lease  of  1826  by  the  sur- 
render above  mentioned.  The  plaintiff's  contention  is  (1)  that  sect. 
3  of  the  Prescription  Act  (2  &  3  Will.  4,  c.  71)  applies  to  the 
Oown;  (2)  that,  if  not,  it  applies  to  the  Crown's  lessees,  Avho  have 
alloM^ed  access  of  light  to  be  enjoyed  over  their  property  for  twenty 
years  without  interruption;  (3)  that,  if  the  plaintiff  has  not  ac- 
quired a  title  by  sect.  3,  he  has  acquired  such  title  by  forty  years' 
enjoyment  under  sect.  2  of  the  Act;  (4)  that  at  all  events  a  lost 
grant  ought  to  be  presumed  in  his  favor,  or  immemorial  enjoyment 
ought  to  be  inferred.  Mr.  Justice  Kekewich  has  held  that  the 
plaintiff  has  not  acquired  an  easement  in  fee  against  the  Crown, 
but  that  he  had  acquired  an  easement  against  the  lessees  of  the 
Crown  for  the  residue  of  the  term  of  ninety-nine  years  granted  by 
the  lease  of  1826,  and  that  the  easement  so  acquired  must  be  treated 
as  subsisting  as  against  the  defendants  until  the  year  1914,  when 
that  lease  would  have  expired  by  effluxion  of  time  if  the  defendants 
had  not  surrendered  it.  From  this  judgment  the  defendants  have 
appealed. 

Before  considering  the  effect  of  the  statute  2  &  3  Will.  4,  c.  71,  it 
is  desirable  to  dispose  of  the  points  relied  upon  by  the  plaintiff  apart 
from  that  Act.  A  grant  from  the  Crown,  as  distinguished  from  its 
tenant,  cannot  be  presumed,  for  there  has  been  no  enjoyment  against 
the  Crown  itself;  and  without  it  there  is  no  foundation  for  such  a 
presumption.  A  title  by  immemorial  prescription  is  excluded  by 
the  known  history  of  the  plaintiff's  house,  which  Avas  built  in  1852 
during  the  pendency  of  the  Crown  lease.  The  Crown  lessee  might, 
no  doubt,  have  granted  to  the  plaintiff,  his  executors,  administrators, 
and  assigns,  an  easement  over  the  land  held  under  the  Crown  for 
the  residue  of  the  term  created  in  1826;  such  an  easement,  if  so 
created,  would  bind  the  lessee,  his  executors,  administrators,  and 
assigns  for  the  residue  of  the  term  thereby  created;  nor  could  the 
lessee,  or  any  one  claiming  under  him,  defeat  the  easement  so  created 
by  surrendering  the  term.  The  lessee  could  only  surrender  such  in- 
terest as  he  had  at  the  time  of  the  surrender,  and  the  surrenderee 
could  only  acquire  the  same  interest :  see  Doe  v.  Pyke,  5  M.  &  S. 
146;  Piggott  v.  Sfraffon,  1  D.  F.  &  J.  33.  Moreover,  in  this  respect 
the  Crown  would  be  in  no  better  position  than  any  other  surrenderee. 
If,  therefore,  the  plaintiff  had  acquired  by  a  grant  from  the  Crown's 
lessee  an  easement  for  the  residue  of  the  term  granted  by  the  lease 


116  WHEATON    V.    MAPLE    &,    CO.  [CHAP.    II 

of  1826,  the  surrender  of  that  lease  would  not  have  destroyed  such 
easement;  and,  notwithstanding  the  surrender,  the  easement  would 
have  continued,  even  as  against  the  Crown,  until  1914,  when  the  lease 
would  have  expired  by  effluxion  of  time.  But  in  this  case  there  is 
no  evidence  of  any  grant  of  any  easement  by  any  lessee  of  the  Crown ; 
nor  can  I  infer  as  a  fact  such  a  grant  by  any  of  the  Crown's  lessees. 
But  then  it  is  contended  that  guch  a  grant  ought  to  be  presumed  as 
a  matter  of  law.  But  this  is  not  so.  !No  such  grant  is  required  to 
account  for  the  state  of  things  which  exists,  nor  is  any  fiction  or 
presumption  necessary  to  render  legal,  conduct  of  the  plaintiff  which 
would  have  been  illegal  without  it.  The  plaintiff  has  simply  been 
enjoying  his  own  property,  as  he  was  perfectly  entitled  to  do;  and 
no  presumption  of  any  grant  entitling  him  to  that  enjoyment  in  the 
past,  or  to  similar  enjoyment  in  future,  can  properly  be  made.  It 
is  true  that  it  has  been  said  that,  after  an  uninterrupted  enjoyment 
of  light  for  twenty  years,  a  covenant  not  to  interrupt  will  be  pre- 
sumed:  see  Cross  v.  Lewis,  2  B.  &  C.  686;  Moore  v.  Rawson,  3  B.  & 
C.  332,  340.  But  I  am  not  aware  of  any  authority  for  presuming, 
as  a  matter  of  law,  a  lost  grant  by  a  lessee  for  years  in  the  case  of 
ordinary  easements,  or  a  lost  covenant  by  such  a  person  not  to  inter- 
rupt in  the  case  of  light,  and  I  am  certainly  not  prepared  to  intro- 
duce another  fiction  to  support  a  claim  to  a  novel  prescriptive  right. 
The  whole  theory  of  prescription  at  common  law  is  against  presum- 
ing any  grant  or  covenant  not  to  interrupt,  by  or  with  any  one  ex- 
cept an  owner  in  fee.  A  right  claimed  by  prescription  must  be 
claimed  as  appendant  or  appurtenant  to  land,  and  not  as  annexed 
to  it  for  a  term  of  years.  Although,  therefore,  a  grant  by  a  lessee 
of  the  CroAvn,  commensurate  with  his  lease,  might  be  inferred  as  a 
fact,  if  there  was. evidence  to  justify  the  inference,  there  is  no  legal 
presumption,  as  distinguished  from  an  inference  in  fact,  in  favor  of 
such  a  grant.  This  view  of  the  common  law  is  in  entire  accordance 
with  Bright  v.  Wall^er,  1  C.  M.  &:  R.  211,  where  this  doctrine  of 
presumption  is  carefully  examined.^ 

The  plaintiff's  right  to  the  easement  claimed  is  thus  reduced  to  the 
statute  2  &  3  "Will.  4,  c.  71.  The  section  specially  applicable  to  light 
is  sect.  3,  which  excludes  all  fictions  and  presumptions  of  law  and  is 
a  clear  and  simple  enactment.  [His  Lordship  read  the  section.] 
Two  questions  arise  upon  this  section  in  the  present  case,  viz. : 
Does  it  bind  the  Crown?  Does  it  confer  a  temporary  right  against 
a  lessee  of  the  Crown,  although  not  as  against  the  CroAvn  itself  as 
reversioner?  In  Perry  v.  Fames,  [1891]  1  Ch.  658,  it  was  decided 
that,  although  parts  of  the  statute  —  viz.,  sects.  1  and  2  —  bind  the 
Crown,  yet  sect.  3  does  not;  the  reason  being  that  the  Crown  is  ex- 
pressly mentioned  in  sects.  1  and  2,  and  is  not  mentioned  in  sect  3. 
Upon  reflection,  I  am  of  opinion  that  this  decision  is  correct.     Con- 

1  See  Wallace  v.  Fletcher,  30  N.  H.  434.  453;  Kilgour  v.  Gaddes,  [1904] 
1  K.  B.  457. 


SECT.  II.]  WHEATON    V.    MAPLE    &    CO.  117 

sideriug  the  difference  between  enjoying  light  in  one's  own  property 
and  enjoying  other  easements  in  other  people's  property,  and  con- 
sidering the  great  alteration  made  by  sect.  3  in  the  law  applicable 
to  light,  I  cannot  regard  sect,  3  as  a  mere  addition  or  proviso  to  or 
qualification  of  sect.  2.  It  is  what  it  purports  to  be  —  viz.,  a  fresh 
and  independent  enactment  relating  to  a  different  kind  of  easement. 
The  Legislature  may  well  have  thought  right  to  bind  the  CroAvn 
when  persons  had  been  for  many  years  actively  asserting  rights  over 
its  property,  and  may  yet  have  purposely  omitted  to  impose  upon 
the  Crown  the  obligation  of  not  interfering  with  persons  who  never, 
in  fact,  interfered  with  it.  The  Crown  is  never  bound  by  a  statutory 
enactment  unless  the  intention  of  the  Legislature  to  bind  the  Crown 
is  clear  and  unmistakeable,  and  this  is  by  no  means  the  case  in  deal- 
ing with  the  question  of  lights. 

I  come  now  to  the  last  question  —  viz.,  whether  sect.  3  has  con- 
ferred an  easement  as  against  the  Crown's  lessees.  So  far  as  mere 
language  is  concerned,  and  apart  from  the  nature  of  the  subject- 
matter  with  which  the  section  is  dealing,  I  should  see  no  difficulty 
in  applying  sect.  3  to  all  English  subjects,  whether  lessees  of  the 
Crown  or  other  people;  I  should  see  no  difficulty  in  reading  "abso- 
lute and  indefeasible "  as  meaning  absolute  and  indefeasible  as 
against  all  persons  to  whom  the  section  is  applicable.  But  if  the 
section  is  so  read,  the  consequence  will  necessarily  be  to  create,  by 
mere  occupation  and  enjoyment,  a  class  of  easements  which  at  com- 
mon law  could  never  have  been  acquired  by  prescription,  but  only 
by  express  agreement  or  grant.  An  easement  for  a  term  of  years 
may,  of  course,  be  created  by  grant;  but  such  an  easement  cannot 
be  gained  by  prescription,  and,  not  being  capable  of  being  so  ac- 
quired, it  does  not  fall  within  the  scope  of  the  statute  2  &  3  "Will.  4, 
c.  71.  The  expression  "  absolute  and  indefeasible,"  as  applied  to 
easements  of  all  kinds,  coupled  with  the  declared  object  of  the  Act, 
which  is  to  shorten  the  time  for  prescription,  shews  that  the  ease- 
ments dealt  with  were  easements  appendant  or  appurtenant  to  land, 
and  which,  when  acquired,  imposed  a  burden  forever  on  the  servient 
tenement.  This  view  of  the  statute  was  clearly  expressed  soon  after 
it  passed  in  Bright  v.  Waller,  1  C.  M.  61:  E.  221,  and  although  some 
passages  in  Baron  Parke's  judgment  in  that  case  have  been  criti- 
cised, and  even  dissented  from,  the  broad  view  which  underlies  the 
judgment  has  never  been  disapproved.  That  view,  as  I  understand 
it,  is  that  the  Act  has  not  created  a  class  of  easements  which  could 
not  be  gained  by  prescription  at  common  law,  or,  in  other  words,  has 
not  created  an  easement  for  a  limited  time  only,  or  available  only 
against  particular  owners  or  occupiers  of  the  servient  tenement. 
Such  easements  can  only  be  <!reated  since  the  Act  as  before  the  .\ct 
—  viz.,  by  grant  or  by  an  agreement  enforceable  in  equity,  which  for 
most  purposes  is  as  efficacious  as  a  deed  under  seal.  Such  a  grant 
or  agreement  must,  moreover,  be  proved  as  a  fact  and  not  be  purely 


118  PARKER    V.    FOOTE  [CHAP.   II 

fi(^titious.  It  was  contended  that  BrUjld  v.  Walker  is  inconsistent 
with  Frciven  v.  Philipp.s,  11  C.  B.  (N.  S.)  449;  but  this  is  a  mis- 
take attributable  to  the  wording  of  the  head-note  in  the  latter  case. 
In  that  case  the  plaintiff  had  acquired  the  easement  he  claimed,  not 
only  against  the  defendant,  the  adjoining  tenant,  but  also  against  his 
lessor,  although  the  plaintiff  and  the  defendant  both  held  under  the 
same  landlord.  Similar  observations  apply  to  Mitchell  v.  Cantrill, 
37  Ch.  D.  56,  and  to  Rohson  v.  Edwards,  [1893]  2  Ch.  146. 

Although  the  expression  "  other  easement  "  occurs  in  sect.  2,  I 
concur  in  the  view  generally  hitherto  adopted,  and  judicially  held 
to  be  correct,  in  Perry  v.  Eames,  [1891],  1  Ch.  658,  viz.,  that  light 
is  not  included  in  sect.  2,  but  is  governed  entirely  by  sect.  3  and  the 
subsequent  sections  which  have  to  be  read  with  it.  I  may,  however, 
observe  that  if  sect.  2  were  applicable  to  this  case,  sect.  8  would  be 
also  applicable,  and  that,  as  the  three  years  there  mentioned  had  not 
expired  before  the  writ  was  issued,  the  plaintiff's  right  would  not 
have  been  absolute  and  indefeasible  even  under  sect.  2.  It  only  re- 
mains to  add  that  there  are  no  circumstances  in  this  case  giving  the 
plaintiff  any  equitable,  as  distinguished  from  legal,  rights  against  the 
defendants.  For  the  reasons  I  have  given,  I  am  of  opinion  that  the 
plaintiff  has  acquired  no  right  to  light  under  the  statute  or  otherwise, 
and  that  the  appeal  must  be  allowed  and  judgment  be  entered  for  the 
defendants,  with  costs  here  and  below. ^ 


PARKER  V.  FOOTE 

19  Wend.  (N.  Y.)  309.    1838. 

This  was  an  action  on  the  case  for  stopping  lights  in  a  dwelling- 
house,  tried  at  the  Oneida  Circuit  in  April,  1836,  before  the  Hon. 
Hiram  Denio,  then  one  of  the  circuit  judges. 

In  1808  the  defendant,  being  the  owner  of  two  village  lots  situate 
in  the  village  of  Clinton,  adjoining  each  other,  sold  one  of  them 
to  Joseph  Stebbins,  who  in  the  same  year  erected  a  dwelling-liouse 
thereon,  on  the  line  adjoining  the  other  lot,  with  windows  in  it  over- 
looking the  other  lot.  The  defendant  also  in  the  same  year  built  an 
addition  to  a  house  which  stood  on  the  lot  which  he  retained,  leaving 
a  space  of  about  sixteen  feet  between  the  house  erected  by  Stebbins 
and  the  addition  put  up  by  himself.  This  space  was  subsequently 
occupied  by  the  defendant  as  an  alley  leading  to  buildings  situate  on 
the  rear  of  his  lot,  and  was  so  used  by  him  until  the  year  1832,  when 
(iiventy-fonr  years  after  the  erection  of  the  house  by  Stebbins,)  he 
erected  a  store  on  the  alley,  filling  up  /he  whole  space  between  the 
two  houses,  and  consequently  stopping  the  lights  in  the  house  erected 

1  See  Smith  v.  Kenard,  2  Hill  Law  (S.  C.)  642  note,  645;  Fear  v.  Morgan, 
[19061  2  Ch.  406. 


SECT.  II.]  PARKER    V.    FOOTE  119 

by  Stebbiiis.  At  the  time  of  the  erection  of  the  store,  the  plaintiffs 
were  the  owners  of  the  lot  originally  conveyed  to  Stebbins,  by  title 
derived  from  him,  and  were  in  the  actual  possession  thereof,  and 
brought  this  action  for  the  stopping  of  the  lights.  Stebbins  (the 
original  purchaser  from  the  defendant,)  was  a  witness  for  the  plain- 
tiffs, and  on  his  cross-examination  testified  that  he  never  had  any 
written  agreement,  deed  or  writing,  granting  permission  to  have  his 
windows  overlook  the  defendant's  lot,  and  that  nothing  was  ever 
said  upon  the  subject.  The  village  of  Clinton  is  built  upon  a  square 
called  Clinton  Green,  the  sides  of  the  square  being  laid  out  into  vil- 
lage lots,  and  contained  at  the  time  of  the  trial  about  one  thousand 
inhabitants.  On  motion  for  a  nonsuit,  the  defendant's  counsel  in- 
sisted that  there  was  no  evidence  of  a  user  authorizing  the  presump- 
tion of  a  grant  as  to  the  windows;  that  the  user  in  this  case  was 
merely  permissive,  which  explained  and  rebutted  all  presumption  of 
a  grant.  That  if  the  user,  in  the  absence  of  other  evidence,  author- 
ized the  presumption  of  a  grant,  still  that  here  the  presumption  was 
rebutted  by  the  proof,  that  in  fact  there  never  had  been  a  grant.  The 
circuit  judge  expressed  a  doubt  whether  the  modern  English  doc- 
trine in  regard  to  stopping  lights  was  applicable  to  the  growing  vil- 
lages of  this  country,  but  said  he  would  rule  in  favor  of  the  plain- 
tiffs, and  leave  the  question  to  the  determination  of  this  court.  He 
also  decided  that  the  fact,  whether  there  was  or  was  not  a  grant 
in  writing  as  to  the  windows,  was  not  for  the  jury  to  determine;  that 
the  law  presumed  it  from  the  user,  and  it  could  not  be  rebutted  by 
proving  that  none  had  in  truth  been  executed.  After  the  evidence 
was  closed,  the  judge  declined  leaving  to  the  jury  the  question  of 
presumption  of  right,  and  instructed  them  that  the  plaintiffs  were 
entitled  to  their  verdict.  The  jury  accordingly  found  a  verdict  for 
the  plaintiffs,  with  $225  damages.  The  defendant  having  excepted 
to  the  decisions  of  the  judge,  now  moved  for  a  now  trial. 

By  the  Court  (Bronson,  J.).  The  modern  doctrine  of  presum- 
ing a  right,  by  grant  or  otherwise,  to  easements  and  incorporeal 
hereditaments  after  twenty  years  of  uninterrupted  adverse  enjoy- 
ment, exerts  a  much  wider  influence  in  quieting  possession,  than  the 
old  doctrine  of  title  by  prescription,  which  depended  on  immemo- 
rial usage.  The  period  of  twenty  years  has  been  adopted  by  the 
courts  in  analogy  to  the  Statute  limiting  an  entry  into  lands;  but 
as  the  Statute  does  not  apply  to  incorporeal  rights,  the  adverse  user 
is  not  regarded  as  a  legal  bar,  but  only  as  a  ground  for  presuming 
a  right,  either  by  grant  or  in  some  other  form.  The  case  of  II ol croft 
V.  Heel,  1  Bos.  &  Pull.  400,  apparently  proceeds  on  the  ground  of  a 
legal  bar;  but  the  report  is  inaccurate,  as  will  be  seen  by  the  ex- 
planation of  Le  Blanc,  J.,  in  Campbell  v.   If //.son,  3  East,  298, 

To  autliorize  the  presum])tion,  the  enjoyment  of  the  easement  must 
not  only  be  uninterrupted  for  the  j)eriod  of  twenty  years,  but  it  must 
be  adverse,  not  by  leave  or  favor,  but  under  a  claim  or  assertion  or 


120  PARKER    V.    FOOTE  [CHAP.    H 

right;  and  it  must  be  with  the  knowledge  and  acquiescence  of  the 
owner.  Campbell  v.  Wilson,  3  East,  294;  Daniel  v.  North,  11  East, 
372;  Barker  v.  Richardson,  4  B.  &  Aid.  579;  Hill  v.  Crosby,  2  Pick. 
466 ;  Sargent  v.  Ballard,  9  Pick  251 ;  Bolivar  Co.  v.  Neponset  Co., 
16  Pick.  241 ;  ChalJcer  v.  Dickinson,  1  Conn.  R.  382.  See  also  Doe 
V.  Butler,  3  Wendell,  149.  It  is  said  that  there  may  be  cases  relat- 
ing to  the  use  of  water,  which  form  exceptions  to  the  rule  that  the 
enjoyment  must  be  adverse  to  authorize  the  presumption  of  a  grant. 
See  Bealey  v.  Shaiv,  6  East,  208;  Ingraham  v.  Hutchinson,  2  Conn. 
R.  584.  To  this  doctrine  I  cannot  subscribe.  Without  reviewing 
the  cases  in  relation  to  the  rights  of  different  riparian  proprietors  on 
the  same  stream,  I  think  it  sufficient  at  this  time  to  say,  that  in  what- 
ever manner  the  water  may  be  appropriated  or  enjoyed,  it  must  of 
necessity  be  either  rightful  or  wrongful.  The  use  of  the  stream 
must  be  such  as  is  authorized  by  the  title  of  the  occupant  of  the  soil 
over  which  the  water  flows,  or  it  must  be  a  usurpation  on  the  rights 
of  another.  If  the  enjoyment  is  rightful,  there  can  be  no  occasion 
for  ijresuming  a  grant.  The  title  of  the  occupant  is  as  perfect  at 
the  outset,  as  it  can  be  after  the  lapse  of  a  century.  If  the  user 
be  wrongful,  a  usurpation  to  any  extent  upon  the  rights  of  another, 
it  is  then  adverse ;  and  if  acquiesced  in  for  twenty  years,  a  reasonable 
foundation  is  laid  for  presuming  a  grant.  If  the  enjoyment  is  not 
according  to  the  title  of  the  occupant,  the  injured  party  may  have 
redress  by  action.  His  remedy  does  not  depend  on  the  question 
whether  he  has  built  on  his  mill-site,  or  otherwise  appropriated  the 
stream  to  his  own  use.  It  is  enough  that  his  right  has  been  invaded ; 
and  although  in  a  particular  case  he  may  be  entitled  to  recover  only 
nominal  damages,  that  will  be  a  sufficient  vindication  of  his  title, 
and  will  put  an  end  to  all  ground  for  presuming  a  grant.  Hobson 
V.  Todd,  4  T.  R.  71;  Bolivar  Co.  v.  Neponset  Co.,  16  Pick.  241; 
Biitman  v.  Hussey,  3  Fairfield   (Me.),  407. 

The  presumption  we  are  considering  is  a  mixed  one  of  law  and  fact. 
The  inference  that  the  right  is  in  him  who  has  the  enjoyment,  so 
long  as  nothing  appears  to  the  contrary,  is  a  natural  one,  —  it  is  a 
presumption  of  fact.  But  adverse  enjoyment,  when  left  to  exert  only 
its  natural  force  as  mere  presumptive  evidence,  can  never  conclude 
the  true  owner.  N^o  length  of  possession  could  work  such  a  con- 
sequence. Hence  the  necessity  of  fixing  on  some  definite  period  of 
enjoyment,  and  making  that  operate  as  a  presumptive  bar  to  the 
rightful  owner.  This  part  of  the  rule  is  wholly  artificial ;  it  is 
a  presumption  of  mere  law.  In  general,  questions  depending  upon 
mixed  presumptions  of  this  description  must  be  submitted  to  the 
jury,  under  proper  instructions  from  the  court.  The  difference  be- 
tween length  of  time  Avhieh  operates  as  a  bar  to  a  claim,  and  that 
which  is  only  used  by  way  of  evidence,  was  very  clearly  stated  by 
Lord  Mansfield,  in  the  Mayor,  &c.  v.  Horner,  Cowp.  102.  "  A  jury 
is  concluded,"  he  says,  "■  by  length  of  time  that  operates  as  a  bar, 


SECT.  II.]  PARKER    V.    FOOTE  121 

as  where  the  Statute  of  Limitations  is  pleaded  in  bar  to  a  debt ; 
though  the  jury  is  satisfied  that  the  debt  is  due  and  unpaid,  it  is  still 
a  bar.  So  in  the  case  of  prescription,  if  it  be  time  out  of  mind,  a 
jury  is  bound  to  conclude  the  right  from  that  prescription,  if  there 
could  be  a  legal  commencement  of  the  right.  But  length  of  time 
used  merely  by  way  of  evidence,  may  be  left  to  the  consideration  of 
the  other,  according  to  circumstances."  In  Darwin  v.  Upton,  2 
a  jury  to  be  credited  or  not,  and  to  draw  their  inference  one  way  or 
Saund.  175,  note  (2),  the  question  related  to  lights,  and  it  was  said 
by  the  same  learned  judge  that  "  acquiescence  for  twenty  years  is 
such  a  decisive  presumption  of  a  right  by  grant  or  otherwise,  that 
unless  contradicted  or  explained,  the  jury  ought  to  believe  it;  but 
it  is  impossible  that  length  of  time  can  be  said  to  be  an  absolute  bar, 
like  a  Statute  of  Limitations ;  it  is  certainly  a  presumptive  bar  Avhich 
ought  to  go  to  the  jury."  Willes,  J.,  mentioned  a  case  before  him, 
in  which  he  held  uninterrupted  possession  of  a  pew  for  twenty  years 
to  be  presumptive  evidence  merely;  in  which  opinion  he  was  after- 
wards confirmed  by  the  C.  B.  The  other  judges  concurred;  and 
Gould,  J.,  before  whom  the  action  was  tried,  said  he  never  had  an 
idea  but  it  was  a  question  for  a  jury;  and  he  compared  it  to  the 
case  of  trover,  where  a  demand  and  refusal  are  evidence  of,  but 
not  an  actual  conversion. 

Some  of  the  cases  speak  of  the  presumption  as  conclusive.  Bealey 
V.  Shaw,  6  East,  208;  Tyler  v.  WilJcinson,  4  Mason,  397.  This  can 
only  mean  that  the  presumption  is  conclusive,  where  there  is  no 
dispute  about  the  facts  upon  which  it  depends.  It  has  never  been 
doubted  that  the  inference  arising  from  twenty  years'  enjoyment  of 
incorporeal  rights,  might  be  explained  and  repelled ;  nor,  so  far  as 
I  have  observed,  has  it  ever  been  denied  that  questions  of  this  de- 
scription belong  to  the  jury.  The  presumption  we  are  considering 
has  often  been  likened  to  the  inference  which  is  indulged  that  a  bond 
or  mortgage  has  been  paid,  when  no  interest  has  been  demanded 
within  twenty  years.  Such  questions  must  be  submitted  to  the  jury 
to  draw  the  proper  conclusion  from  all  the  circumstances  of  each 
particular  case.  Jachson  v.  Wood,  12  Johns.  E.  242;  JacJcson  v. 
Sacketi,  7  Wendell,  94.  In  Sivett  v.  Wihon,  3  Bing.  115,  the  ques- 
tion was  on  a  right  of  way :  the  defendant  pleaded  a  grunt,  and  the 
judge  left  it  to  the  jury  to  say,  whether  they  thought  the  defendant 
had  exercised  the  right  of  way  uninterruptedly  for  more  than  twenty 
years,  by  virtue  of  a  deed;  and  Best,  C.  J.,  said  the  direction  was 
perfectly  right.  He  added,  "  I  do  not  dispute  that  if  there  had  been 
an  uninterrupted  usage  for  twenty  years,  the  jury  might  be  author- 
ized to  presume  it  originated  in  a  deed;  but  even  in  such  a  case  a 
judge  would  not  ])e  justified  in  saying  that  they  must,  but  that  they 
may  presume  tlio  dcri].  If,  hoAvever,  there  are  circumstances  incon- 
sistent with  the  existence  of  a  deed,  tlie  jury  should  be  directed  to 
consider  ihem,  and  to  decide  accordingly."    In  /////  v.  Crosby,  2  Pick. 


122  PARKER    V.    FOOTE  [CHAP.   II 

466,  the  court  set  aside  the  verdict,  although  they  thouglit  it  right, 
because  the  question  had  not  been  referred  to  the  jury. 

In  a  plain  case,  where  there  is  no  evidence  to  repel  the  presumption 
arising  from  twenty  years'  uninterrupted  adverse  user  of  an  incor- 
poreal right,  the  judge  may  very  properly  instruct  the  jury  that  it  is 
their  duty  to  find  in  favor  of  the  party  who  has  had  the  enjoyment; 
but  still  it  is  a  question  for  the  jury.  The  judge  erred  in  this  case 
in  wholly  withdrawing  that  question  from  the  consideration  of  the 
jury.     On  this  ground,  if  no  other,  the  verdict  must  be  set  aside. 

The  bill  of  exceptions  presents  another  question  which  may  prob- 
ably arise  on  a  second  trial,  and  it  seems  proper  therefore  to  give 
it  some  examination. 

As  neither  light,  air,  nor  prospect  can  be  the  subject  of  a  grant, 
the  proper  presumption,  if  any,  to  be  made  in  this  case,  is,  that  there 
was  some  covenant  or  agreement  not  to  obstruct  the  lights.  Cross  v. 
Lewis,  2  Barn,  &  Cress.  628,  per  Bayley,  J.;  Moore  v.  Raivson,  3 
Barn.  &  Cress,  332,  per  Littledale,  J.  But  this  is  a  matter  of  little 
moment.  Where  it  is  proper  to  indulge  any  presumption  for  the  pur- 
pose of  quieting  possession,  the  jury  may  be  instructed  to  make  such 
a  one  as  the  nature  of  the  case  requires.  Eldridge  v.  Knott,  Cowp. 
214, 

Most  of  the  cases  on  the  subject  we  have  been  considering,  relate 
to  ways,  commons,  marl:ets,  watercourses,  and  the  like,  where  the 
user  or  enjoyment,  if  not  rightful,  has  been  an  immediate  and  con- 
tinuing injury  to  the  person  against  whom  the  presumption  is  made. 
His  property  has  either  been  invaded,  or  his  beneficial  interest  in  it 
has  been  rendered  less  valuable.  The  injury  has  been  of  such  a  char- 
acter that  he  might  have  immediate  redress  by  action.  But  in  the 
case  of  ivindoivs  overlooking  the  land  of  another,  the  injury,  if  any,  is 
merely  ideal  or  imaginary.  The  light  and  air  which  they  admit  are 
not  the  subjects  of  property  beyond  the  moment  of  actual  occupancy, 
and  for  overlooking  one's  privacy  no  action  can  be  maintained.  The 
party  has  no  remedy  but  to  build  on  the  adjoining  land  opposite  the 
offensive  window.  Chandler  v.  Thompson,  3  Campb.  80;  Cross  v. 
Lewis,  2  Barn.  &  Cress.  686,  per  Bayley,  J.  Upon  what  principle 
the  courts  in  England  have  applied  the  same  rule  of  presumption  to 
two  classes  of  cases  so  essentially  different  in  character,  I  have  been 
unable  to  discover.  If  one  commit  a  daily  trespass  on  the  land  of 
another,  under  a  claim  of  right  to  pass  over,  or  feed  his  cattle  upon 
it ;  or  divert  the  water  from  his  mill,  or  throw  it  back  upon  his  land 
or  machinery;  in  these  and  the  like  cases,  long-continued  acqui- 
escence affords  strong  presumptive  evidence  of  right.  But  in  the 
Case  of  lights,  there  is  no  adverse  user,  nor  indeed  any  use  whatever 
of  another's  property;  and  no  foundation  is  laid  for  indulging  against 
the  rightful  owner. 

Although  I  am  not  prepared  to  adopt  the  suggestion  of  Gould.  J., 
in  Ingrahani  v,  nutchin.9on,  2  Conn.  R,  507,  that  the  lights  which  are 


SECT.  II.]  PARKER   V.    FOOTE  123 

protected  may  be  such  as  project  over  the  land  of  the  adjoining  pro- 
prietor; yet  it  is  not  impossible  that  there  are  some  considerations 
connected  with  the  subject  which  do  not  distinctly  appear  in  the  re- 
ported cases.  See  KnigJit  v.  Hahcij,  2  Bos.  k  Pull.  206,  per  Eooke, 
J.,  1  Phil.  Ev.  125. 

The  learned  judges  who  have  laid  down  this  doctrine  have  not  told 
us  upon  what  principle  or  analogy  in  the  law  it  can  be  maintained. 
They  tell  us  that  a  man  may  build  at  the  extremity  of  his  own  land, 
and  that  he  may  laivfuUy  have  windows  looking  out  upon  the  lands 
of  his  neighbor.  2  Barn.  &  Cress.  686 ;  3  Id.  332.  The  reason  why 
he  may  lawfully  have  such  windows,  must  be,  because  he  does  his 
neighbor  no  wrong;  and  indeed,  so  it  is  adjudged  as  we  have  already 
seen;  and  yet  somehow  or  other,  by  the  exercise  of  a  lawful  right  in 
his  own  land  for  twenty  years,  he  acquires  a  beneficial  interest  in  the 
land  of  his  neighbor.  The  original  proprietor  is  still  seised  of  the 
fee,  with  the  privilege  of  paying  taxes  and  assessments;  but  the 
right  to  build  on  the  land,  without  which  city  and  village  lots  are 
of  little  or  no  value,  has  been  destroyed  by  a  lawful  window.  How 
much  land  can  thus  be  rendered  useless  to  the  owner,  remains  yet 
to  be  settled.  2  Barn.  &  Cross,  686;  2  Carr.  &  Payne,  465;  5  Id. 
438.  IS^ow  what  is  the  acquiescence  which  concludes  the  owner?  No 
one  has  trespassed  upon  his  land,  or  done  him  a  legal  injury  of  any 
kind.  He  has  submitted  to  nothing  but  the  exercise  of  a  lawful  right 
on  the  part  of  his  neighbor.  How  then  has  he  forfeited  the  beneficial 
interest  in  his  property?  He  has  neglected  to  incur  the  expense  of 
buildiiig  a  wall  twenty  or  fifty  feet  high,  as  the  case  may  be,  —  not 
for  his  own  benefit,  but  for  the  sole  purpose  of  annoying  his  neighbor. 
That  was  his  only  remedy.  A  wanton  act  of  this  kind,  although  done 
in  one's  own  land,  is  calculated  to  render  a  man  odious.  Indeed, 
an  attempt  has  been  made  to  sustain  an  action  for  erecting  such  a 
wall.    Mahan  v.  Brown,  13  Wendell,  261. 

There  is,  I  think,  no  principle  upon  which  the  modern  English  doc- 
trine on  the  subject  of  lights  can  be  supported.  It  is  an  anomaly  in 
the  law.  It  may  do  well  enough  in  England;  and  I  see  that  it  has 
recently  been  sanctioned,  with  some  qualification,  by  an  Act  of  Parlia- 
ment. Stat.  2  &  3  Will,  4,  c,  71,  §  3.  But  it  cannot  be  applied  in 
the  growing  cities  and  villages  of  this  country,  without  working  the 
most  mischievous  consequences.  It  has  never,  I  think,  been  deemed 
a  part  of  our  law,  3  Kent's  Comm,  446,  note  (a).  Nor  do  I  find 
that  it  has  been  adopted  in  any  of  the  States.  The  case  of  Story 
V.  Odin,  12  Mass.  R,  157,  proceeds  on  an  entirely  different  principle. 
It  cannot  be  necessary  to  cite  cases  to  prove  that  those  portions  of 
the  common  law  of  England  Avhich  are  hostile  to  the  spirit  of  our 
institutions,  or  which  are  not  adapted  to  the  existing  state  of  things 
in  this  country,  form  no  part  of  our  law.  And  besides,  it  would  be 
difficult  to  prove  that  the  rule  in  question  was  known  to  the  common 
law  previous  to  the  19th  of  April,  1775.    Const,  N",  Y,,  art,  7,  §  13, 


124  PARKER    V.    FOOTE  [CHAP.   II 

There  were  two  nisi  prius  decisions  at  an  earlier  day,  (Lewis  v. 
Price,  in  1761,  and  Dongal  v.  Wilson  in  1763,)  but  the  doctrine  was 
not  sanctioned  in  Westminster  Hall  until  1786,  when  the  case  of 
Darwin  v.  Upton  was  decided  by  the  K.  B.  2  Saund.  175,  note  (2). 
This  was  clearly  a  departure  from  the  old  law.  Bury  v.  Pope,  Cro. 
Eliz.  118. 

There  is  one  peculiar  feature  in  the  case  afbar.  It  appears  affirma- 
tively that  there  never  was  any  grant,  writing  or  agreement  about  the 
use  of  the  lights.  A  grant  may  under  certain  circumstances  be  pre- 
sumed, although,  as  Lord  Mansfield  once  said,  the  court  does  not 
really  think  a  grant  has  been  made.  Eldridge  v.  Knott,  Cowp.  214. 
But  it  remains  to  be  decided  that  a  right  by  grant  or  otherwise  can 
be  presumed  when  it  plainly  appears  that  it  never  existed.  If  this 
had  been  the  case  of  a  way,  common,  or  the  like,  and  there  had  actu- 
ally be  an  uninterrupted  adverse  user  for  twenty  years  under  a  claim 
of  right,  to  which  the  defendant  had  submitted,  I  do  not  intend  to 
say  that  proof  that  no  grant  was  in  fact  made  would  have  overturned 
the  action.  It  will  be  time  enough  to  decide  that  question  when  it 
shall  be  presented.  But  in  this  case  the  evidence  of  Stebbins,  who 
built  the  house,  in  connection  wdth  the  other  facts  which  appeared 
on  the  trial,  proved  most  satisfactorily  that  the  windows  were  never 
enjoyed  under  a  claim  of  right,  but  only  as  a  matter  of  favor.  If 
there  was  anything  to  Jeave  to  the  jury,  they  could  not  have  hesitated 
a  moment  about  their  verdict.  But  I  think  the  plaintiffs  should 
have  been  nonsuited. 

The  Chief  Justice  concurred  on  both  points. 

CowEN,  J.,  only  concurred  in  the  opinion  that  the  question  of  pre- 
sumption of  a  grant  should  have  been  submitted  to  the  jury. 

New  trial  granted.^ 

1  The  decisions  in  the  United  States  that  no  easement  for  light  and  air 
can  be  acquired  by  prescription  are  numerous.  2  Tiffany,  Real  Prop.,  2d  ed., 
§  517.  Contra,  Clawson  v.  Primrose,  4  Del.  Ch.  643;  but  compare  Hulley  v. 
The  Security  Trust  Co.,  5  Del.  Ch.  578.  In  Sullivan  v.  Zeiner,  98  Cal.  346, 
it  was  held  that  no  easement  for  lateral  support  to  a  building  can  be  ac- 
quired by  prescription.  Mitchell  v.  Rome,  49  Ga.  19;  Handlan  v.  McManus, 
42  Mo,  App.  551;  Tunstall  v.  Christian,  80  Va.  1,  accord. 

"  The  registry  laws  do  not  extinguish  easements  by  prescription  in  favor 
of  purchasers  without  notice."  Holmes,  J.,  in  Shaughnessey  v.  Leary,  162 
Mass.  109,  112. 


SECT.  II.]  LAMB    V.    CROSLAND  125 

LAMB  V.  CROSLAND. 

4  Rich.  (So.  Car.)  536.    1850. 

This  was  an  action  on  the  case  for  obstructing  a  ditch. 
The  lands  of  the  parties  were  adjoining.  The  plaintiff's  land,  in 
1817,  belonged  to  her  husband,  one  Alexander  Lamb.  The  defend- 
ant's land,  then,  belonged  to  one  Bartholomew  Cosnahan.  Near 
Lamb's  house  were  some  ponds,  which,  in  wet  seasons,  were  filled 
with  water,  and  produced  sickness.  Lamb  asked  and  obtained  per- 
mission from  Cosnahan  to  cut  a  ditch  through  his  land,  for  the  pur- 
pose of  draining  those  ponds.  The  ditch  communicated  with  an  old 
ditch,  called  the  meadow  ditch,  by  which  the  water  passed  off  into 
Crooked  Creek.  The  land  through  which  the  ditch  was  cut  by  Lamb, 
was  then  woodland;  it  had  since  been  cleared.  The  ditch  had  been 
kept  open  as  a  drain  for  Lamb's  land  ever  since,  and  worked  on 
occasionally,  when  it  suited  the  convenience  of  those  who  owned  the 
land.  The  plaintiff  was  in  possession  of  Lamb's  land.  Lamb  died 
in  1836.  No  evidence  of  how  the  plaintiff  derived  title  was  given; 
but  it  was  understood,  from  the  course  of  the  testimony,  that  it  had 
been  sold  for  partition,  and  she  was  the  purchaser,  B.  Cosnahan 
died  in  1820,  leaving  a  widow  and  infant  children,  one  of  whom  was 
not  of  age  until  1841.  After  his  death,  the  land  remained  in  the 
possession  of  his  widow  and  the  administrator,  until  1833,  when  it 
was  sold  for  partition,  and  purchased  by  one  E.  Cosnahan,  who  sold 
it  to  one  Feagin  in  1836.  From  him  it  passed  to  Green.  About 
1843,  he  sold  to  Dudley,  and  Dudley  to  the  defendant.  In  1847, 
(in  January,)  in  consequence  of  the  lower  part  of  the  ditch  not  be- 
ing kept  sufficiently  open,  four  acres  of  the  defendant's  land,  on  the 
side  of  the  ditch,  were  too  wet  to  plough.  He  sent  to  the  plaintiff, 
requested  her  to  open  it,  but  she  did  not  do  it.  In  March,  the  de- 
fendant filled  up  the  ditch  with  dirt  and  logs.  Some  negotiation 
took  place,  and  the  plaintiff  opened  the  ditch,  but,  as  it  turned  out, 
not  sufficiently,  for  in  July  there  were  very  heavy  rains,  and  the 
water  ponded  on  the  four  acres,  and  injured  the  growing  crop.  The 
defendant  again  obstructed  the  ditch.  It  remained  so  four  days, 
when  the  plaintiff's  son  removed  the  obstruction.  But  in  these  four 
days,  the  corn  in  the  plaintiff's  pond  was  destroyed.  For  this  injury 
the  action  was  brought,  and  the  sole  question  presented  by  the  case 
was,  whether  the  plaintiff  had  a  prescriptive  right  to  drain  her  land 
through  this  ditch.  If  she  had,  the  defendant  had  no  right  to  ob- 
struct it.  If  she  had  not,  then  the  defendant  had  a  right  to  fill  it  up 
on  his  own  land. 

Evidence  was  given  on  the  question,  whether  tlic  use  had  been  ad- 
verse, or  only  permissive.  That  question  was  submitted  to  the  jury, 
who  found  for  the  plaintiff. 


126  LAMB    V.    CROSLAND  [CHAP.   II 

In  Lis  report  of  the  case,  his  Honor,  the  p'-esiding  judge  \^Evans, 
J.],  says:  — 

"  It  was  very  clear,  that  from  1820  to  1833,  the  land  of  defendant 
belonged  to  infants ;  and  there  was  not  the  slightest  evidence  to  change 
the  original  character  of  the  use,  up  to  the  death  of  B.  Cosnahan. 
My  own  opinion,  founded  on  a  pretty  full  argument,  made  in  the 
case  of  Boykin  v.  Cantey,  Avhich  I  tried  at  Kershaw,  was,  that  the 
presumption  of  title,  arising  from  adverse  use,  did  not  arise  when 
the  owners  were,  at  the  time  of  its  commencement,  infants ;  and  that, 
even  in  cases  of  intervening  infancy,  the  presumption  was  suspended 
during  infancy,  for  the  presumption  depends,  not  on  the  use  alone, 
but  the  acquiescence  of  the  owner.  In  this  case,  there  is  no  doubt 
about  the  facts.  The  use  began  in  1817,  and  continued  to  1847,  a 
period  of  thirty  years.  But  during  the  time,  the  land  belonged  to 
infants  thirteen  years,  leaving  only  seventeen  years.  Entertaining 
this  opinion,  if  I  had  left  that  point  to  the  jury,  they  of  course 
would  have  found  for  the  defendant;  but  I  did  not  feel  at  liberty, 
after  having  spent  more  than  a  day  on  the  trial,  to  arrest  the  case 
by  a  nonsuit,  on  an  undecided  point,  and  one  of  difficult  solution. 
The  case  was  sent  to  the  jury  on  the  other  points,  reserving  to  the 
defendant  the  right  to  renew  his  motion  in  the  Appeal  Court." 

The  defendant  appealed,  and  now  moved  for  a  nonsuit,  or  new 
trial,  on  several  grounds;  the  fourth  ground  for  a  nonsuit  was  as 
follows : 

Because,  admitting  that  the  plaintiff  had  adverse  possession  for 
twenty-nine  years,  it  was  in  evidence,  that  for  thirteen  years  of  this 
time,  the  proprietors  of  the  servient  tenement  were  infants,  against 
whom  an  adverse  possession  could  not  grow  into  a  right. 

Curia,  per  Evans,  J.  There  are  several  questions  presented  by 
the  brief  in  this  case,  but  as  the  decision  depends  on  the  fourth 
ground  for  a  nonsuit,  none  of  the  other  questions  wdll  be  considered. 
That  ground  is, in  the  following  words,  to  wit,  "admitting  that  the 
plaintiff  had  adverse  possession  for  twenty-nine  years,  thirteen  years 
of  this  time  the  proprietors  of  the  servient  tenement  were  infants, 
against  whom  an  adverse  possession  could  not  grow  into  a  right." 
The  facts  of  the  case,  necessary  to  be  stated  in  order  to  understand 
this  ground,  are  these.  In  1817,  the  ditch,  which  was  the  subject  of 
controversy,  was  dug  by  Lamb  through  Cosnahan's  land,  by  his 
permission  or  consent,  for  the  purpose  of  draining  some  ponds  on 
the  land  of  Lamb.  The  ditch  has  been  kept  open  ever  since,  until 
obstructed  by  the  defendant,  who  now  owns  the  land.  In  1820, 
Cosnahan  died,  leaving  a  Avidow  and  infant  children  his  heirs  at 
law,  one  of  whom  was  not  of  age  until  1841.  In  1833,  the  land  was 
sold,  under  a  decree  of  the  Court  of  Equity,  for  partition,  and  pur- 
chased by  one  E.  Cosnahan,  from  whom,  by  several  intermediate 
conveyances,  the  defendant  derives  his  title.  The  question  arising 
on  these  facts  is,  whether  the  plaintiff^  who  is  the  owner  of  Lamb's 


SECT.  II.]  LAMB    V,    CROSLAND  127 

land,  to  drain  which  the  ditch  was  dug,  has  acquired,  by  the  use 
thereof,  a  right  of  drainage  against  the  owner  of  the  land.  There 
is  no  doubt  that,  according  to  our  law,  as  declared  in  a  great  many 
cases,  the  adverse  use  of  an  easement  for  twenty  years  will  confer  a 
right  to  the  use  of  it,  as  fully  as  if  a  deed  for  it  were  produced  and 
proved.  In  the  ordinary  transactions  of  mankind,  we  find  that  men 
are  not  disposed  to  allow  others  to  exercise  dominion  over  their  prop- 
erty. When,  therefore,  we  find  that  such  dominion  has  been  exercised 
for  a  long  period,  without  objection  on  the  part  of  the  owner,  it  is 
reasonable  to  conclude  that  such  use  began  in  right,  or  it  would  have 
been  objected  to.  This  title  is  founded  on  the  presumption  of  a 
grant,  which  time  or  accident  has  destroyed.  But  this  is  perhaps  a 
legal  fiction,  which  the  law  resorts  to,  to  support  ancient  possessions, 
and  to  maintain  what  the  acts  of  the  parties  show  they  considered 
to  exist. 

There  can  be  no  doubt  that,  if  Cosnahan  had  lived  for  twenty 
years  after  the  use  of  the  ditch  commenced,  and  Lamb  had  used  it 
adversely,  as  the  jury  have  found,  the  right  would  have  been  perfect ; 
and  I  suppose  it  equally  clear,  that  if  the  time  before  Cosnahan's 
death,  added  to  the  time  which  elapsed  after  the  sale  in  1833,  to- 
gether, made  the  full  period  of  twenty  years,  the  right  would  be 
beyond  dispute.  For  in  both  cases  there  would  be  an  adverse  use, 
and  an  acquiescence  by  those  laboring  under  no  disability,  for  the  full 
period  that  the  law  requires  to  support  the  presumption  of  a  grant. 

In  this  case  these  two  periods  of  time  amount  to  only  seventeen 
years,  and  unless  the  presumption  can  arise  against  the  infants,  the 
twenty  years  is  incomplete. 

In  McPherson  on  Infants,  it  is  said,  (p.  538,)  "It  is  a  maxim  of 
law,  that  laches  is  not  to  be  imputed  to  an  infant,  because  he  is  not 
supposed  to  be  cognizant  of  his  rights,  or  capable  of  enforcing  them." 
In  Bacon's  Abridg.  Title,  Infant,  G.  (5  vol.  110),  last  edition,  it  is 
said :  "  The  rights  of  infants  are  much  favored  in  law,  and  regu- 
larly their  laches  shall  not  prejudice  them,  upon  the  presumption 
that  they  understand  not  their  rights,  and  that  they  are  not  capable 
of  taking  notice  of  the  rules  of  law  so  as  to  apply  them  to  their 
advantage."  The  same  doctrine  is  to  be  found  in  all  the  elementary 
writers  from  Coke  to  the  present  time.  The  presumption  arises  from 
the  acquiescence  of  the  parties  interested  to  dispute  it,  and  it  would 
be  difficult  to  assign  a  reason  for  drawing  any  conclusion  from  the 
acquiescence  of  an  infant,  who  is  supposed  in  law  not  to  be  cognizant 
of  his  rights,  or  capable  of  enforcing  them.  Accordingly  we  find, 
that  in  all  the  cases  which  have  been  decided,  so  far  as  I  know,  no 
presumption  has  been  allowed  against  the  rights  of  an  infant,  Avhether 
the  question  related  to  the  satisfaction  of  bonds  for  the  payment  of 
money,  or  the  performance  of  other  acts,  or  to  rights  growing  out  of 
what  Best  calls  a  non-p.ristin(]  qrani}  In  Boyd  v.  Keels,  decided  in 
1  Best  on  Presump.  p.  102  ct  seq. 


128  LAMB    V.    CROSLAND  [CHAP.   II 

1830,  it  was  held  that  no  prcsuinptioii  could  arise  that  the  condition  of 
a  bond  of  an  administrator  had  been  performed,  because  the  dis- 
tributee, to  whom  he  was  to  account  and  pay  over  the  money,  was  an 
infant.  The  same  was  affirmed  in  the  case  of  Brown  v.  McCall,  3 
Hill,  335.  In  Gray  v.  Givens,  2  Hill,  Ch.  K,  514,  Judge  Harper  says, 
"  I  think  it  has  not  been  questioned,  that  the  time  during  which  the 
party  to  be  affected  has  been  under  disability,  must  be  deducted  in 
computing  the  lapse  of  time,  in  analogy  to  the  Statute  of  Limita- 
tions. Such  was  the  case  in  Riddlehoover  v.  K'lnard,  1  Hill,  Ch.  R. 
375.  If  the  possession  were  taken  in  early  infancy,  the  title  might  be 
matured  before  the  infant  arrived  at  age,  and  before  the  Statute  of 
Limitations  had  begun  to  run  against  him.  The  decisions  have  been 
numerous,  and  the  practice  habitual,  and  I  am  not  aware  of  any  doc- 
trine or  decisions  to  the  contrary."  We  have  no  case  involving  the 
right  to  an  easement,  in  w^hich  the  question  involved  in  this  case  has 
been  decided  by  this  court.  In  Watt  v.  Trapp,  2  Rich.  136,  Judge 
O'lSTeall,  on  the  circuit,  expressed  the  opinion  to  the  jury,  that  the  j)re- 
sumption  of  a  grant  to  a  way  w^ould  be  arrested  by  infancy.  But  that 
point  was  not  necessarily  involved  in  the  case,  and  this  court  de- 
clined to  express  any  opinion,  as,  according  to  my  recollection,  it 
was  not  argued.  In  other  States  the  question  has  been  decided.  In 
the  case  of  Watkins  v.  PecJc,  13  jSTew  Hamp.  R.  360,  it  was  held,  that 
a  grant  cannot  be  presumed  from  the  use  and  enjoyment  of  an  ease- 
ment for  the  term  of  twenty  years,  when  the  party,  who  must  have 
made  the  grant  as  it  existed,  was  an  infant  at  the  time  of  making 
it.  This  does  not  come  up  fully  to  the  case  under  consideration,  be- 
cause in  this  case  the  grant,  if  any,  must  have  been  made  coeval 
with  the  use,  and  that  was  in  the  lifetime  of  Cosnahan,  who  was 
adult.  But  that  can  make  no  difference,  unless  we  apply  the  rule, 
which  has  been  adoj)ted  in  relation  to  some  of  the  clauses  of  the 
Statutes  of  Limitations,  viz.,  that  where  the  Statute  begins  to  run, 
it  will  not  be  arrested  by  any  intervening  disability.  But  this  has 
not  been  contended  for,  and  there  is  no  semblance  of  authority  to 
support  it.  This  construction  arises  on  a  positive  enactment,  that 
the  action  must  be  within  four  years  from  the  time  the  right  of 
action  accrued ;  whereas  presumptions  arise  from  the  assertion  of  the 
right,  and  the  acquiescence  in  it,  during  the  whole  period  of  twenty 
years,  and  how  can  it  be  said  that  the  infants  have  acquiesced,  when 
they  were  incapable  of  asserting  their  rights? 

But  the  case  of  Melvin  v.  Whiting,  13  Pick.  R.  190,  was  a  case  of 
intervening  infancy.  The  plaintiff  claimed  title  to  a  several  fishery 
on  the  defendant's  soil,  and  replied,  to  support  his  title,  on  proof  of 
an  adverse,  uninterrupted,  and  exclusive  use  and  enjoyment  for 
twenty  years.  The  jury  were  instructed  by  the  Chief  Justice  that, 
to  raise  such  a  presumption  of  conveyance,  it  must  appear  that  such 
exclusive  right  had  been  used  and  enjoyed  against  those  who  were 
able  in  law  to  assert  and  enforce  their  rights,  and  to  resist  such 


SECT.    II]  TRACY    V.    ATHERTON  129 

adverse  claim,  if  not  well  founded;  and,  therefore,  if  the  persons 
against  whom  such  adverse  right  is  claimed,  were  under  the  disability 
of  infancy,  the  time  during  which  such  disability  continued,  was  to 
be  deducted  in  the  computation  of  the  twenty  years;  and  this  con- 
struction was  supported  by  the  Court  of  Appeals.  The  only  dictum 
which  I  have  found  to  the  contrary,  is  contained  in  the  opinion  of 
Judge  Story,  in  the  case  of  Tyler  v.  Wilkinson,  4  Mason,  402.  The 
action  involved  the  priority  of  right  to  use  the  water  in  Pawtucket 
River,  and  in  no  way  involved  the  question  of  the  rights  of  infants. 
The  question  which  he  was  discussing  was,  whether  the  presumption 
from  adverse  use  was  a  presumptio  juris  et  de  jure,  a  question  of 
law  to  be  decided  by  the  court,  or  a  fact  to  be  determined  by  the 
jury.  In  support  of  his  argument,  that  it  is  a  presumptio  juris, 
he  says  the  right  by  presumption  of  a  grant  is  not  affected  by  the 
intervention  of  personal  disabilities,  such  as  infancy,  coverture,  and 
insanity.  This  dictum  is  noticed  and  disregarded  in  the  New  Hamp- 
shire case  above  referred  to,  and  I  may  be  permitted  to  say,  without 
any  disrespect  to  that  great  and  learned  judge,  that  he  did  not  bear 
in  mind  the  distinction  between  a  right  claimed  by  prescription, 
and  a  presumption  of  right  from  a  non-existing  grant.  The  former 
requires  a  use  beyond  legal  memory,  the  latter  may  arise  within 
twenty  years.  Best  on  Presump.  §  88;  3  Stark.  Ev.  911,  3d  ed.,  2 
Ev.  Poth.  139. 

We  are  of  opinion,  that  the  period  of  time  during  which  the  infant 
heirs  of  Cosnahan  were  the  owners  of  the  servient  tenement,  is  not 
to  be  computed  as  a  part  of  the  twenty  years'  adverse  use  necessary 
to  vest  the  easement  in  the  plaintiff,  and  upon  this  ground  the  plain- 
tiff should  have  been  nonsuited  on  the  circuit.  It  is  therefore  ordered 
that  the  verdict  be  set  aside,  and  the  defendant  have  leave  to  enter 
up  a  judgment  of  nonsuit. 

O'Neall  and  Frost,  JJ.,  concurred.  Motion  granted.^ 


TRACY  V.  ATHERTON" 

36  Vt.  503.     1864. 

Trespass  on  the  freehold.  Plea,  the  general  issue  and  a  special 
plea  justifying  the  trespass  under  an  alleged  private  right  of  way, 
and  also  a  highway.  Trial  by  jury,  April  Term,  1862,  Pierpoint, 
J.,  presiding. 

The  testimony  tended  to  show  that  one  Penniman  was  the  owner 
of  a  piece  of  land,  adjoining  the  close  described  in  the  declaration, 
from  some  time  prior  to  the  1828,  until  June,  1854,  when  he  sold 
and  conveyed  it  to  one  Batchelder;  that  Batchelder  sold   and   con- 

1  See  Hodges  v.  Goodfipeed,  20  R.  I.  537;  Saunders  v.  Simpson,  97  Tenn. 
382;  2  Tiffany,  Real  Prop.,  2d  ed.,  §  515. 


130  TRACY    V.    ATHERTON  [CHAP.    II 

veyed  it  to  Barber,  about  the  year  1858;  and  that  at  the  time  of 
the  comniittiiig  of  the  trespasses  in  question,  the  defendants  were 
jointly  occupying  said  land  under  a  contract  with  Barber  for  its 
purchase.     That  prior  to  the  year  1828,  one  Jones  was  the  owner 
of  the  close  mentioned  in  the  declaration,  and  remained  so  until  the 
5th  of  ISTovember,  1833,  when,  with  the  knowledge  of  Penniman,  he 
sold  and  conveyed  it,  by  deed  of  warranty,  to  Griswold  W.  Tracy, 
the  plaintiff's  father,  who  continued  to  own  and  occupy  it  until  the 
time  of  his  decease,   on  the  7th   of   September,   1837.     It   did   not 
appear  that  Penniman  was  present  when  the  deed  was  executed,  or 
that  he  knew  that  the  conveyance  was  by  deed  of  warranty.    That  at 
the  decease  of  Griswold  W.  Tracy  this  close  descended  to  the  plaintiff 
as  heir  of  Griswold  W.,  and  that  he  has  ever  since  continued  to  be  the 
owner  of  it.     That  at  the  time  of  the  decease  of  Griswold  W.,  the 
plaintiff  was  a  minor,  and  remained  so  until  the  27th  of  September, 
1853,  when  he  arrived  at  majority.     That  for  many  years  prior  to 
the  year  1828,  there  was  a  public  and  open  highway  leading  through 
the   close    described   in   the   declaration,    and    through    the   land    so 
owned  by  Penniman,  which  highway  was  discontinued  and  fenced 
up  in  the  summer  of  1828,  and  has  so  remained  ever  since.     That  at 
or  about  the  time  of  the  discontinuance  of  this  highway,  and  as  a 
part  of  the  arrangement  for  throwing  up  the  highway,  Penniman 
having  no  other  means  of  access  to  his  land,  it  was  orally  agreed  be- 
tween Penniman  and  Jones,  that  if  it  was  discontinued,  Penniman 
should  always  have  the  privilege  of  passing  from  the  main  road  to 
and  from  his  land  over  the  land  of  Jones,  at  the  place  where  the 
highway  then  was,  and  in  as  ample  a  manner  as  he  had  before.    That 
Penniman,  his  tenants  and  grantees,  down  to  the  time  the  Penniman 
lot  passed  to  the  defendants,  were  in  the  habit  frequently,  as  they 
had  occasion,  of  passing  over  the  locus  in  quo  with  teams,  cattle  and 
sheep,  without  asking  or  obtaining  permission  and  without  any  ex- 
press assertion  of  a  right  so  to  do,  but  under  a  claim  of  right;  and 
that  they  kept  this  way  in  repair. 

It  appeared  that  in  October,  1837,  Mrs.  Sarah  Tracy,  plaintiff's 
mother,  (who,  from  the  time  of  the  death  of  her  husband,  always 
lived  with  the  plaintiff,)  was  appointed  guardian  of  the  plaintiff, 
and  acted  as  such  during  his  minority;  and  it  also  appeared  that 
on  the  24th  of  December,  1850,  Penniman  wrote  and  caused  to  be 
delivered  to  Mrs.  Tracy,  the  following  letter,  to  wit :  — 

December  24,  1850. 

Mrs.  Tracy  —  Madam.  My  men  that  are  drawing  wood,  wish  to 
go  through  your  lots.  If  you  will  let  them  pass,  I  will  pay  you 
any  reasonable  sum  you  or  your  neighbors  may  say. 

Respectfully,  A.  H.  Penniman. 

The  testimony  of  Mrs.  Tracy,  who  was  called  as  a  witness  by  the 
plaintiff,  tended  to  show  that  she  supposed,  from  the  letter  itself, 


SECT.    II  ]  TRACY    V.    ATHERTON  131 

that  it  had  reference  to  the  place  where  the  highway  formerly  crossed 
the  close  mentioned  in  the  declaration,  and  where  Penniman  and 
his  tenant  had  been  accustomed  to  pass.  But  Penniman  testified 
that  the  letter  referred  to  a  different  place,  and  that  a  different  place 
was  -used  on  that  occasion.  The  plaintiff's  testimony  further  tended 
to  show  that  soon  after  the  conveyance  by  Penniman  to  Batchelder, 
the  plaintiff  gave  permission  to  Barber,  (who  had  the  principal  care 
of  the  Penniman  lot  for  Batchelder  while  he  owned  it,)  to  take 
cattle  and  sheep  across  the  plaintiff's  land  upon  the  application  of 
Barber,  and  refused  to  grant  any  privilege  to  one  of  the  defendants 
soon  after  they  commenced  occuyjying  the  Penniman  lot. 

The  plaintiff's  testimony  further  tended  to  prove  that  the  defend- 
ants had  driven  their  stock  across  the  locu^  in  quo  daily  previous 
to  the  commencement  of  this  suit. 

The  defendants'  evidence  tended  to  show  that  their  use,  and  that 
of  those  under  whom  they  claimed,  was  always  adverse,  continuous, 
without  license  and  under  a  claim  of  right,  and  applied  to  any  species 
of  use  connected  with  the  use  of  the  farm. 

The  plaintiff  requested  the  court  to  charge  the  jury  (among  other 
things,)  that  the  infancy  of  the  plaintiff,  from  the  time  he  became 
the  owner  of  the  locus  in  quo  until  the  27th  of  September,  1853, 
would,  if  the  fact  was  found,  operate  as  an  interruption  of  the  ad- 
verse uses  of  the  way  by  Penniman,  and  that  in  determining  the 
question  of  a  prescriptive  right  to  the  easement  claimed  by  the  de- 
fendants, only  the  time  which  elapsed  after  the  plaintiff's  majority 
could  be  considered.  Or  that  if  such  infancy  did  not  wholly  defeat 
the  effect  of  the  previous  uses  of  the  way  by  Penniman,  the  time  dur- 
ing which  the  infancy  existed  should  be  deducted  from  the  whole 
time  of  user,  and  that  if  after  such  deduction  the  adverse  enjoyment 
of  the  way  had  not  continued  for  fifteen  years,  no  right  could  be 
presumed. 

That  every  renewal  of  a  license  to  pass  across  the  plaintiff's  land  at 
the  place  in  question ;  every  application  for  such  renewal,  by  the 
defendants  or  those  preceding  them  in  the  chain  of  title  to  the  Penni- 
man lot;  and  every  admission  by  the  defendants  or  by  their  predeces- 
sors in  the  title  to  said  lot,  that  the  use  of  the  way  in  question  had 
been  by  the  license,  consent  or  indulgence  of  the  owners  of  the 
servient  close,  would  conclusively  rebut  the  presumption  of  a  grant; 
and  that  the  previous  enjoyment  of  such  way  had  been  under  a  claim 
of  right,  however  long  such  previous  enjoyment  might  have  continued. 

The  court  declined  so  to  instruct  the  jury,  except  as  follows:  — 

The  court  instructed  the  jury  particularly  as  to  what  it  was  neces- 
sary for  the  defendant  to  prove,  to  establish  in  himself  the  right  of 
way  claimed;  to  which  no  exception  was  taken. 

The  court  told  the  jury  that  if  Penniman,  while  he  owned  the 
farm  now  owned  by  the  defendant,  and  before  the  right  of  way  had 
become  established  and  vested  in  the  owner  of  such  farm,  applied  for 


132  TRACY    V.    ATHERTON  [CHAP.    II 

and  obtained  a  license  from  the  owner  or  occupier  of  the  Tracy  lot,  to 
pass  over  the  place  in  question,  such  fact  would  prevent  his  acquir- 
ing a  right  of  way  by  any  subsequent  user,  and  defeat  the  claim  now 
set  up  by  the  defendant;  and  the  same  would  be  the  case  in  respect 
to  any  other  owner  of  said  farm.  But  if  the  jury  found  that  the 
right  had  become  established  and  vested  in  the  owner  of  said  farm 
by  such  a  use  of  the  way,  and  for  such  a  period  as  the  court  has 
told  them  was  necessary,  a  subsequent  application,  by  such  owner, 
for  leave  to  pass  over  the  place  in  question,  and  a  license  given 
accordingly,  would  not  divest  the  right  and  defeat  the  claim.  But 
that  in  determining  whether  the  right  had  become  established,  such 
an  application,  made  after  the  lapse  of  the  required  period,  would 
be  an  important  matter  for  them  to  consider,  in  determining  whether 
the  use  of  the  way  had  been  of  such  a  character  as  the  court  had 
told  the  jury  was  necessary  to  establish  the  right.  That  if  Penni- 
man,  in  his  letter  of  the  24th  of  December,  1850,  referred  to  a  differ- 
ent place  from  the  way  in  question,  such  an  application  would  have 
no  effect  in  this  case,  even  though  Mrs.  Tracy  supposed  he  referred 
to  the  place  in  question. 

The  plaintiff  excepted  to  the  refusal  to  charge  as  requested,  and 
to  the  charge  as  above  detailed. 

Poland,  C.  J.  The  great  question  in  this  case  is,  what  eifect  the 
infancy  of  the  plaintiff  has  upon  the  right  of  way  claimed  to  have 
been  acquired  over  the  plaintiff's  land,  by  the  defendants  and  their 
predecessors  in  title,  by  prescription,  or  adverse  possession  for  a 
period  of  more  than  fifteen  years.  It  is  now  claimed  that  the  jury 
should  have  been  directed  to  find  on  the  evidence  whether  the  ad- 
verse use  of  the  way  began  before  the  land  descended  to  the  plaintiff, 
and  should  have  been  instructed  on  the  law  of  the  case  on  the  theory 
of  finding  that  the  adverse  use  began  after  the  land  descended  to  the 
plaintiff,  and  during  his  infancy.  But  it  appears  from  the  case  that 
the  testimony  tended  to  show  that  the  use  of  the  way  began  as  early 
as  1828,  by  Penniman,  and  under  a  claim  of  right,  in  pursuance  of 
the  agreement  made  when  it  was  discontinued  as  a  highway.  It  does 
not  appear  that  any  evidence  was  given  tending  to  contradict  this; 
indeed  it  rather  appears  that  this  commencement  of  the  use  was 
shown  by  the  plaintiff's  ow^n  evidence.  None  of  the  requests  made  by 
the  plaintiff's  counsel  to  the  court  point  to  any  such  state  of  the 
case,  so  that  we  can  only  consider  this  as  one  of  those  common  efforts 
to  raise  a  question  in  this  court  on  exceptions,  which  was  not  made 
at  all  in  the  court  below. 

It  must  be  taken,  then,  under  the  finding  of  the  jury,  that  the  use 
of  the  way  began  before  the  estate  descended  to  the  plaintiff,  and  that 
it  was  continued  under  a  claim  of  right,  and  without  interruption, 
for  more  than  fifteen  years;  but  that  during  this  period  the  title  came 
to  the  plaintiff,  who  was  an  infant,  and  so  continued  from  1837  to 
•1853;  so  that,  if  the  plaintiff  was  right  in  his  request,  that  the  jury 


SECT.    II ]  TRACY    V.    ATHERTON  133 

should  be  charged  that  only  the  time  after  the  plaintitr  became  of 
age  should  be  reckoned,  there;  was  nothing  for  the  jury  to  consider, 
and  if  he  was  right  in  his  request  that  the  period  of  his  nonage 
should  be  deducted,  then  the  jury  should  have  been  dii-ected  to  find 
whether  the  use  of  the  way  before,  and  after  the  disability,  was  suffi- 
cient to  make  the  requisite  period. 

We  understand  the  case  to  have  been  submitted  to  the  jury  on  this 
ground:  that  if  the  adverse  use  of  the  way  began  during  the  life  of 
the  plaintiff's  father,  or  his  grantor,  and  was  continued  for  the 
period  of  fifteen  years,  without  interru])tion,  the  right  was  acquired, 
though  before  the  expiration  of  the  fifteen  years  the  land  over  which 
the  way  was  used,  descended  to  the  j)laintift",  who  was  an  infant. 

The  question  arises  on  the  correctness  of  this  instruction.  The 
Statute  of  Limitations  does  not  extend  to  these  incorporeal  rights, 
but  it  has  now  become  universally  settled  that  an  uninterrupted  use 
of  a  way  or  other  easement,  under  a  claim  of  right,  for  the  period  of 
time  fixed  by  the  Statute  as  a  bar  to  the  recovery  of  lands  held  ad- 
versely, gives  the  person  so  using  it  a  full  and  absolute  right  to  such 
easement,  as  much  as  if  granted  to  him.  This  has  been  settled  by 
a  long  course  of  judicial  decisions,  and  is  founded  primarily  on  the 
ancient  doctrine  of  prescriptions,  but  has  finally  by  the  courts  been 
made  to  conform,  by  analogy,  to  the  Statute  of  Limitations  applicable 
to  lands,  in  all  substantial  ])articulars,  so  far  as  flic  difference  iti  the 
subjects  will  allow. 

The  general  language  of  the  books,  found  in  innumerable  cases,  is 
that  from  such  a  possession,  continued  for  the  period  of  the  Statute, 
the  law  will  presume  a  grant,  or  courts  will  direct  juries  to  presume 
a  grant.  But  this  is  purely  a. legal  fiction.  The  doctrine  proceeds 
wholly  upon  the  ground  of  presuming  a  right  after  such  length  of 
possession,  and  not  at  all  upon  the  ground  that  there  ever  was  a  grant 
made,  but  which  has  been  lost,  and  though  it  may  be  shown  ever 
so  clearly  that  no  grant  was  ever  made,  the  case  is  not  at  all  varied. 

A  great  deal  of  learning  has  been  expended  upoi>  the  question 
whether,  in  such  case,  the  presumption  arising  from  the  length  of  pos- 
session is  a  presumption  of  law,  or  one  of  fact,  and  all  the  cases  on 
the  subject  have  been  industriously  brought  to  our  attention  in  the 
argument  of  this  case. 

The  counsel  for  the  plaintiff  say  that  this  presumption  of  a  grant 
from  such  long  possession  is  a  presumption  of  fact,  to  be  found  by  a 
jury  from  such  possession,  unless  rebutted,  and  that  therefore  any 
evidence  which  tends  to  show  that  no  such  grant  was  nuule,  or  could 
have  been  made,  is  admissible,  and  should  be  submitted  to  the  jury. 
If  it  were  true  that  such  was  the  real  ground  upon  which  these 
rights  are  sustained,  the  view  of  the  counsel  would  be  unanswerable. 
But  the  counsel  themselves  do  not  claim  that  this  grnni  wliich  is 
presumed  is  anything  but  mere  fiction.  The  true  view  of  the  subject 
is  well  stated  by  Wilde,  J.,  in  CooVidge  v.  Learned,  8  Pick.  504.     He 


134  TRACY    V.    ATHERTON  [CHAP.    II 

says :  "  It  has  long  been  settled,  that  the  undisturbed  enjoyment  of 
an  incorporeal  right  aflFecting  the  lands  of  another  for  twenty  years, 
the  possession  being  adverse  and  unrebntted,  imposes  on  the  jury  a 
duty  to  presume  a  grant,  and  in  all  cases  juries  are  so  instructed  by 
the  court.  Not,  however,  because  either  the  court  or  jury  believe  the 
presumed  grant  to  have  been  actually  made,  but  because  public 
policy  and  convenience  require  that  long-continued  possession  should 
not  be  disturbed." 

It  is  said  in  many  of  the  cases  that  this  length  of  possession  is  only 
evidence  to  be  submitted  to  the  jury.  If  by  this  is  meant,  that  where 
it  is  conceded  or  proved  that  there  has  been  an  uninterrupted  posses- 
sion under  claim  of  right  for  the  requisite  time,  and  this  is  not  en- 
countered by  any  evidence  to  rebut  the  legal  effect  of  it,  that  it  is  a 
proper  question  to  be  submitted  to  the  jury  to  say  whether  this  gives 
a  right,  or  not,  it  is  not  in  our  opinion  correct. 

If  there  be  any  conflict  of  evidence  as  to  the  length,  or  character 
of  the  case,  or  any  evidence  proper  to  rebut  the  acquiring  the  right, 
it  then  becomes  proper  to  submit  it  to  the  jury.  But  where  it  stands 
solely  upon  the  conceded  or  proved  possession  under  claim  of  right 
for  the  requisite  time,  it  is  never  submitted  to  a  jury  to  find  the 
right  established  or  not,  according  to  their  judgments.  And  whether 
it  is  more  proper  for  the  court  to  tell  the  jury  that  it  is  their  duty 
from  this  to  presume  a  grant,  or  to  tell  the  jury  that  from  this  the 
law  presumes  a  grant,  is  mere  idle  speculation.  In  fact,  and  in  sub- 
stance, it  is  a  verdict  directed  by  the  court,  as  a  matter  of  law.  And 
if  it  were  submitted  to  the  jury,  and  they  were  to  return  a  verdict 
against  the  right,  no  court  would  ever  accept  the  verdict. 

Mr.  Washburn,  who  reviews  all  the  decisions  on  the  question 
whether  the  presumption  to  be  drawn  from  possession  or  use  of  an 
easement  for  the  required  time,  is  one  of  law,  or  one  of  fact,  and  who 
gives  the  weight  of  his  opinion  in  favor  of  its  being  a  presumption 
of  fact  for  the  jury,  after  all,  says,  "  It  may,  therefore,  be  stated 
as  a  general  proposition  of  law,  that  if  there  has  been  an  uninter- 
rupted user  and  enjoyment  of  an  easement,  a  stream  of  water,  for 
instance,  in  a  particular  way,  for  more  than  twenty-one,  or  twenty, 
or  such  other  period  of  years  as  answers  to  the  local  period  of  limi- 
tation, it  affords  conclusive  presumption  of  right  in  the  party  who 
shall  have  enjoyed  it,  provided  such  use  and  enjoyment  be  not  by 
authority  of  law,  or  by  or  under  some  agreement  between  the  owner 
of  the  inheritance  and  the  party  who  shall  have  enjoyed  it."  Wash, 
on  Eas.  &c.  70. 

In  the  case  of  Townsend  v.  Dowtier,  32  Yt.  183,  Aldis,  J.,  in 
giving  the  judgment  of  the  court,  says :  "  When  from  long  posses- 
sion, with  or  without  auxiliary  circumstances,  a  grant  is  presumed 
as  matter  of  law,  and  without  regard  to  the  fact  whether  such  a  grant 
was  really  made  or  not,  then  it  may  with  the  strictest  propriety  be 
said  that  the  law  presumes  a  grant.    In  such  a  case,  under  the  prac- 


SECT.    II  ]  TRACY    V.    ATHERTON  135 

tice  in  this  State,  it  would  be  the  duty  of  the  court  to  direct  a 
verdict." 

He  then  proceeds  to  speak  of  the  class  of  cases  where  lapse  of  time 
and  long  possession  is  relied  on  with  other  circumstances,  as  evi- 
dence to  establish  that  a  grant  has  been  made  in  fact.  The  opinion 
then  proceeds :  "  We  do  not  understand  that  there  is  still  a  third 
class  of  cases  in  which,  although  the  grant  is  not  presumed  by  the 
court  as  pure  matter  of  law,  and  is  not  found  by  the  jury  as  a  fact, 
still  the  court  may  direct  the  jury  to  presume  a  grant,  and  thus  by 
the  intervention  of  the  jury,  but  without  the  exercise  of  their  judg- 
ment upon  the  evidence,  establish  the  grant  as  if  it  were  a  mere  in- 
ference of  the  law.  Language  may  be  found  in  some  books  and  de- 
cisions favoring  such  a  view,  but  the  doctrine  is  clearly  against  the 
whole  current  of  English  and  American  decisions,  and  tends  to  con- 
found the  proper  and  separate  jurisdictions  of  court  and  jury.  This 
erroneous  view,  we  think,  has  arisen  from  the  want  of  precision  in 
language,  when  treating  of  presumptive  evidence  and  the  grants 
proved  by  or  presumed  from  it." 

We  think  therefore,  that  in  substance  the  presumption  arising  from 
such  long-continued  possession,  unrebutted,  is  a  presumption  of  law, 
and  that  it  is  conclusive  evidence,  or  sufficient  evidence  to  -warrant 
the  court  in  holding  that  it  confers  a  right  on  the  possessor  to  the 
extent  of  his  use. 

But  it  does  not  in  our  opinion  go  very  far  in  determining  the 
question  in  this  case,  whether  the  presumption  arising  from  the 
length  of  possession  is  one  of  law,  or  one  of  fact,  for  wdiichever  it 
may  be  it  is  liable  to  be  rebutted  in  various  ways.  It  may  be  shown 
to  have  originated  or  continued  by  leave  of  the  owaier;  that  it  has 
not  been  under  a  claim  of  right,  or  not  continuous;  or  that  it  has 
been  interrupted  by  the  owner  of  the  land,  and  whenever  any  evi- 
dence is  introduced  tending  to  invalidate  the  right  claimed,  on  any 
of  these  grounds,  that  the  case  becomes  a  proper  one  to  submit  to 
the  jury. 

But  all  authorities  concur  in  saying  that  this  doctrine  has  been 
adopted  and  rests  upon  its  analogy  to  the  Statute  of  Limitations 
applicable  to  lands,  and  both  parties  in  the  present  case  agree  that 
the  effect  of  the  plaintiff's  disability  upon  the  right  claimed  by  the 
defendants,  is  precisely  the  same  that  it  would  be  upon  lands  of  the 
plaintiff  holden  adversely  by  the  defendants,  and  their  predecessors 
in  title,  during  the  same  period.  And  in  our  judgment  rights  to  ease- 
ments acquired  by  long  possession  ought  to  stand  on  the  same  ground 
as  rights  by  possession  in  lands.  The  real  principle  underlying  the 
right,  is  the  same  precisely  on  which  the  Statute  of  Limitations 
stands.  In  the  first  place,  it  is  })resunied  that  one  man  would  not 
quietly  submit  to  have  anotlier  use  and  ctijoy  his  property  for  so 
great  a  length  of  time  unl(>ss  tlicrc  existed  some  good  ro;isoji  for  his 
doing  so,  and  that  after  allowing  it  for  so  long,  lie  sIkiuM  not  ciill 


136  TRACY    V.    ATHERTON  [CHAP.    II 

upon  liim  to  show  liis  right  or  title,  when  it  may  not  be  in  his  power 
to  do  so;  and  in  the  second  place,  it  is  a  rule  of  policy,  adopted  in 
support  of  long  and  uninterrupted  possession.  It  is  important  too 
in  another  view,  that  the  doctrine  of  the  law  in  the  two  cases  should 
harmonize,  that  the  people  may  not  be  misled  and  perplexed  by  hav- 
ing the  law  different  ways  upon  subjects  which  in  reason  and  upon 
principle  should  be  the  same. 

The  requisites  of  a  possession'  by  which  an  easement  is  acquired,  as 
generally  laid  down  in  the  books  are,  that  it  should  be  adverse,  under 
a  claim  of  right,  exclusive,  continuous  and  uninterrupted.  These  are 
exactly  the  requisites  of  a  possession  of  lands  to  give  a  title  under  the 
Statute  of  Limitations  against  the  proprietor.  But  it  is  sometimes 
said  that  the  possession  must  be  with  the  acquiescence  of  the  owner. 
But  this  is  the  same  as  saying  that  the  possession  must  be  uninter- 
rupted. If  the  owner  does  not  interrupt  the  possession  in  any  way, 
he  does  acquiesce  as  far  as  is  needful  in  order  to  make  the  possession 
effectual  against  him.  In  the  case  of  lands  which  are  wholly  in  the 
possession  of  a  disseisor,  in  order  to  make  an  effectual  interruption 
of  the  possession,  the  owner  must  actually  make  an  entry  on  the  land 
for  that  purpose.  In  Powell  v.  Bragg,  8  Gray,  441,  it  Avas  decided, 
that  where  the  owner  of  the  land,  over  which  another  had  laid  an 
aqueduct,  and  claimed  to  have  acquired  a  right  by  possession  upon 
the  land,  forbid  the  owner  of  the  aqueduct  from  entering  upon  the 
land  to  use  the  aqueduct,  this  was  such  an  interruption  of  the  use  as 
prevented  the  acquirement  of  an  easement  right.  The  owner  of  the 
land,  being  already  in  possession,  could  not  make  an  entry  to  stop 
the  effect  of  the  user,  or  possession,  and  his  act  on  the  land,  of  for- 
bidding the  other  to  enter  and  use  the  aqueduct,  was  all  he  could  do 
to  prevent  him  unless  he  resorted  to  force,  and  ordinarily  the  law 
does  not  require  one  to  use  force  to  assert  his  rights. 

In  the  case  of  an  entry  on  land  to  interrupt  the  acquiring  a  right 
by  a  disseisoi*,  the  owner  is  not  required  to  use  force  in  order  to  give 
legal  effect  to  his  entry. 

It  is  not  necessary  to  determine  whether  such  an  interruption  as 
was  shown  in  Powell  v.  Bragg  would  be  sufficient  to  stop  the  effect  of 
a  previous  use  toward  acquiring  a  right  by  prescription,  but  the  de- 
cision is  founded  apparently  on  a  sound  distinction  between  an  actual 
adverse  possession  of  lands,  and  a  mere  easement  upon*  lands,  of 
which  the  owner  himself  is  in  the  actual  possession. 

Under  the  English  Statute  of  Limitations,  passed  as  early  as  the 
reign  of  James  I.,  it  was  uniformly  held  that  disabilities,  in  order 
to  prevent  the  operation  of  the  Statute,  must  exist  at  the  time  the 
right  first  accrued. 

This  Statute  of  James  has  been  the  foundation  of  similar  Statutes 
in  this  country  generally,  and  though  its  ]>recise  language  has  hardly 
ever  been  adopted,  still,  the  same  construction  has  been  generally  fol- 
lowed by  America  11  courts.     The  only  instance  of  so  wide  a  departure 


SECT.    II  ]  TRACY    V.   ATHERTON  137 

from  the  English  Statute  as  to  induce  a  different  construction  in  this 
respect  is  in  the  State  of  Kentucky.  But  the  saving  in  the  Kentucky 
Statute  is  in  favor  of  those  "  who  are  or  shall  be  infants,  (fcc,  at  the 
time  when  the  said  right  or  title  accrues  or  comes  to  them."  The 
counsel  for  the  plaintiff  claim  that  our  Statute  of  Limitations  of 
1797  varies  so  widely  from  the  English  as  to  require  a  different  con- 
struction in  this  respect,  and  one  similar  to  that  given  by  the  Ken- 
tucky courts  to  theirs. 

The  Act  of  1797  limits  rights  of  entry  into  lands,  and  actions  for 
the  recovery  of  lands,  to  fifteen  years  next  after  the  right  shall  accrue 
to  the  plaintiff  or  those  under  whom  he  claims.  Sect.  10  provides, 
generally,  that  it  shall  not  apply  to  infants,  etc.,  but  they  shall  be 
allowed  to  sue  within  fifteen  years  after  the  removal  of  the  disability. 
It  does  not  say,  in  terms,  that  the  rights  of  those  disabled  Avhen  the 
right  first  accrued  shall  be  saved,  as  does  the  English  Statute. 
!N"either  does  it,  in  terms,  save  the  rights  of  those  Avho  shall  be  in- 
fants, &c.,  when  the  right  accrues  or  comes  to  them. 

But  the  question  cannot  be  regarded  as  an  open  one  in  this  State. 
In  McFarland,  Adm'r  of  Burdick,  v.  Stone,  17  Vt.  174,  the  iiues- 
tion  came  before  the  court.  The  action  was  ejectment  to  recover 
lands  of  which  Burdick  died  seised.  The  defendant  had  been  in  pos- 
session more  than  fifteen  years  before  suit  brought  claiming  title. 
The  plaintiff  claimed  to  avoid  the  Statute  on  the  ground  of  the  dis- 
ability of  the  heirs.  Two  of  the  heirs  were  infants  at  the  decease  of 
their  father,  and  fifteen  years  had  not  elapsed  after  they  became  of 
age  before  the  suit  was  brought,  and  the  plaintiff  was  allowed  to  re- 
cover for  their  shares  of  the  land.  Two  other  female  heirs  were  in- 
fants when  the  defendant  entered  upon  the  land,  and  before  they 
became  of  age  were  married,  and  so  continued  till  suit  brought,  so 
that  they  had  been  constantly  under  disability  during  the  Avhole 
period  of  defendant's  possession.  The  Statute  had  not  run  in  favor 
of  defendant  when  the  disability  of  coverture  intervened,  but  more 
than  fifteen  years  had  run  after  they  became  of  age,  before  suit 
brought. 

It  was  decided  that  their  rights  were  bound  by  the  Statute,  and 
the  court  held  that  our  Statute  should  have  the  same  construction 
as  the  English,  and  that  no  disabilities  could  be  regarded  as  within 
the  saving,  except  such  as  existed  at  the  time  the  right  first  accrued. 
If  the  plaintiff's  claim  is  well  founded,  tlmt  the  intervening  of  a  dis- 
ability, before  the  Statute  has  run,  arrests  it,  and  entitles  the  party 
to  fifteen  years  longer  after  the  disability  is  removed  to  sue,  then 
the  plaintiff  should  liave  recovered  the  shares  of  the  two  female 
heirs.  They  could  not  be  in  a  worse  condition  nft(M-  the  disability 
of  coverture  arose,  in  consequence  of  liaving  licni  all  the  ])n'vious 
time  under  the  disability  of  infancy,  than  tlu-y  would  liavr  been,  if 
before  tluf  coverture  they  had  been  Icgiilly  coinixtcnt  to  sue,  or  the 
right  had  been  in  some  one  else  who  was  (•(niipctciit.     Tlic  real  point 


138  TRACY    V.    ATHERTON  [CHAP.    H 

in  the  case  was  the  same  made  here,  viz. :  Must  disabilities,  in  order 
to  be  within  the  saving  of  the  Statute,  exist  when  the  right  first 
accrues  ?  —  and  was  fully  decided.  It  was  stated  in  argument  by 
Judge  Bennett,  that  the  Statute  of  1797  was  always  understood  by 
the  courts,  and  men  of  eminence  in  the  legal  profession  in  the  State, 
to  be  diflferent  from  the  Statute  of  James  in  this  respect.  Judge 
Bennett's  long  experience  at  the  bar  and  upon  the  bench,  entitles  his 
statement  to  great  consideration,  but  the  strictest  search  has  not 
enabled  us  to  find  any  trace  of  such  an  opinion  in  our  reports,  and 
the  case  of  McFarland  v.  Stone,  where  the  contrary  was  decided,  was 
tried  by  Judge  Bennett,  and  his  ruling  was  affirmed  in  the  Supreme 
Court.  So  far  as  we  have  any  knowledge  of  professional  tradition 
on  the  subject,  the  general  understanding  has  been  that  wlien  the 
Statute  of  Limitations  once  began  to  run,  no  subsequent  intervening 
disability  would  arrest  it. 

Our  present  Statute  of  Limitations  is  made  to  conform  exactly  to 
the  English,  by  confining  the  saving  of  disabilities  to  such  as  exist 
at  the  time  the  cause  of  action  accrues,  but  no  one  has  ever  supposed 
that  the  law  in  this  respect  was  changed  from  wdiat  it  was  under  the 
Act  of  1797.  Indeed  the  change  of  phraseology  has  been  made  by 
revisers,  and  for  the  purpose  of  making  the  language  more  exactly 
express  the  meaning  as  judicially  determined. 

The  decisions  in  relation  to  the  Statute  applying  to  personal 
actions  are  all  in  the  same  direction.  HiU  v.  Jackson,  12  Vt.  We 
are  satisfied  therefore,  that  by  the  settled  construction  of  the  Statute 
of  Limitations,  a  disability  in  order  to  prevent  the  operation  of  the 
Statute  must  exist  when  the  right  first  accrues,  and  if  the  analogy 
of  the  Statute  in  this  respect  is  to  be  followed,  it  must  govern  this 
case.  And  we  see  no  reason  why  it  should  not  be  in  this  particular, 
if  in  any,  as  it  stands  upon  the  same  reason  and  is  governed  by  the 
same  policy. 

The  cases  that  have  been  cited  bearing  upon  this  particular  point 
are  contradictory,  and  no  uniform  principle  seems  to  have  been  fol- 
lowed in  deciding  them.  Melvln  v.  Whiting,  13  Pick.  134,  is  cited 
by  the  plaintiff.  It  was  an  action  for  disturbing  the  plaintiff's 
fishery.  The  plaintiff  claimed  a  right  to  the  fishing  by  long-con- 
tinued use  or  prescrijDtion.  It  appeared  that  after  plaintiff's  pos- 
session commenced,  the  title  i;nder  Avhich  defendant  claimed,  became 
vested  in  some  infant  heirs.  It  was  held  that  the  period  of  minority 
should  be  deducted,  but  as  the  plaintiff's  possession,  before  the 
commencement,  and  after  the  expiration  of  the  disabilit}^  added 
together,  made  the  requisite  length,  according  to  the  Statute  of 
Massachusetts,  the  plaintiff's  right  was  held  to  be  established,  and 
he  was  allowed  to  recover.  The  case  seems  to  have  been  very  little 
examined  by  court  or  counsel,  no  reasons  are  given,  or  authorities 
cited. 

Watlmis  V.  Peel-  et  ah,  13  X.  H.  360,  is  also  cited  by  plaintiff. 


SECT.    II  ]  TRACY    V.    ATHERTON  139 

This  was  a  case  in  chancery,  involving  in  controversy  the  right  to 
draw  water  by  aqueduct  from  a  spring.  In  this  case  also,  during 
the  use  from  Avhich  the  right  was  claimed,  the  title  had  descended  to 
minor  heirs,  and  it  was  held  that  this  interrupted  the  prescription. 
Judge  Parker,  who  gave  the  opinion,  says  that  such  a  right  by  long 
possession  rests  upon  the  presumption  of  a  lost  grant,  and  that  it 
would  be  absurd  to  presume  a  grant,  where  it  was  clear  that  no  such 
grant  could  have  existed. 

It  would  almost  seem  that  the  distinction  between  the  class  of 
cases  where  the  question  is  whether  there  has  been  a  grant  or  deed 
in  fact,  and  those  where  this  presumption  is  a  mere  legal  fiction,  was 
not  perfectly  clear  to  so  eminent  a  judge  as  Judge  Parker. 

Lamb  v.  Crosland,  4  Rich.  S.  C.  iy^^Q,  is  also  cited  by  Prof.  Wash- 
burn, as  supporting  the  same  doctrine,  but  I  have  not  seen  the  case. 

On  the  other  hand  the  case  of  Reimer  v.  Stuber,  20  Penn.  St.  458, 
where  a  right  of  way  was  claimed  by  prescription,  and  sought  to 
be  avoided  on  the  ground  of  disability,  the  use  began  during  the 
minority  of  the  owner  of  the  land,  and  who  before  she  became  of  age 
was  married,  it  was  held  that  the  time  began  to  run  when  she  became 
of  age,  notwithstanding  the  subsequent  disability  of  coverture.  If 
the  case  stood  really  upon  the  ground  of  a  presumed  grant,  and  it 
could  not  be  presumed  because  the  owner  was  under  a  disability, 
and  could  not  make  a  grant,  it  must  extend  through  both  disabilities. 
The  case  can  stand  only  upon  the  analogy  of  the  Statute.  In  that 
view  it  is  clearly  correct. 

Mihane  v.  Fafricl-,  1  Jones  JST.  C.  23,  was  a  claim  by  the  plaintiff 
that  he  had  acquired  a  right  of  Avay  by  use.  After  the  use  began 
the  owner  of  the  servient  estate  became  insane.  It  was  decided  that 
as  the  disability  did  not  exist  at  the  time  of  the  commencement  of 
the  plaintiff's  adverse  use,  it  did  not  prevent  the  use  ripening  into 
a  right.  The  court  say,  "  Such  being  the  law  as  to  the  Statute  of 
Limitations,  it  follows  it  must  be  so,  in  regard  to  prescriptions  also." 
The  language  of  Judge  Story  in  Tyler  v.  Wilhinson,  4  Mason,  402, 
in  this  respect  goes  even  beyond  Avliat  we  are  disposed  to  hold,  indeed 
disabilities  coming  clearly  within  the  saving  of  the  Statute,  would 
not  avoid  a  prescription,  according  to  the  most  general  interpretation 
of  his  language.  But  doubtless  it  was  not  intended  by  him  to  bear 
so  broad  a  meaning.  Prof.  Washburn  in  his  treatise  on  Klasements 
■  says,  "  Perhaps  the  difference  in  the  provisions  of  the  Statutes  of 
Limitations  in  the  different  States,  nuiy  account  for  the  discrepancy 
in  the  decided  cases."  But  they  can  hardly  be  reconciled  on  such 
a  basis.  In  both  Massachusetts  and  New  Hampshire,  it  is  fully  set- 
tled, that  under  their  Statutes  of  Limitations  no  disability  avoids 
their  operation,  unless  it  exist  at  the  time  the  right  first  accrues. 
The  decisions  in  those  States  must  have  been  iikuIc  in  entire  disregard 
of  the  analogy  of  the  Statute  in  this  respect,  and  we  think  they 
were  made  in  giving  undue  importance  to  the  fictitious  theory  of  a 
lost  grant. 


140  TRACY    V.    ATHERTON  [CHAP.    II 

The  eases  opposed  to  them  are  in  our  jtulgment  foniulcd  upon 
niucli  sounder  legal  reason,  and  we  are  disposed  to  follow  the  Penn- 
sylvania and  North  (Carolina  eases,  rather  than  those  nearer  home. 

This  disposes  of  the  principal  questions  made  in  the  case.  The 
plaintiff  claims  there  was  error  in  the  charge  in  another  respect; 
that  if  they  found  the  right  of  way  claimed  by  the  defendants  fully 
established  by  the  evidence  as  to  the  length  and  character  of  the 
use,  any  subsequent  application  for,  and  obtaining  license  to  use  it 
from  the  plaintiff,  would  not  divest  them  of  the  right.  Such  sub- 
sequent application  for  license  would  be  very  powerful  evidence  to 
show  that  the  previous  use  was  not  under  a  claim  of  right,  so  as  to 
give  a  title,  but  no  claim  is  made  but  that  as  evidence,  it  was  given 
all  the  force  it  was  entitled  to. 

But  the  plaintiff  claims  that  it  should  have  the  effect  of  an  es- 
toppel, and  prevent  the  defendants  from  setting  up  the  right  of  way 
they  had  obtained  by  the  previous  use.  The  claim  is  put  upon  the 
same  ground  as  that  of  a  tenancy,  where  if  a  tenant  has  been  ad- 
mitted into  possession  by  the  landlord,  he  is  estopped  to  deny  his 
title.  But  we  fail  to  see  the  analogy,  or  any  good  ground  upon 
which  an  estoppel  could  be  founded.  The  charge  proceeded  on  the 
basis  that  the  jury  had  already  found  the  right  of  way  completely 
established.  The  right  of  the  defendants  then  was  the  same  as  if 
they  actually  held  a  conveyance  of  the  right  from  the  plaintiff.  In 
such  case  it  would  seem  singular  that  a  parol  admission  of  the 
plaintiff's  right,  or  whether  the  defendants'  want  of  right,  should 
operate  really  as  a  reconveyance  of  a  vested  legal  right  in  realty, 
which  cannot  be  conveyed  by  parol.  We  think  it  can  be  regarded 
merely  as  an  admission  to  be  weighed  against  the  defendants  and  as 
such  the  defendants  had  the  full  benefit  of  it. 

The  only  remaining  point  is  the  instructions  as  to  the  Penniman 
letter.  The  letter  appears  to  have  been  introduced  merely  as  an 
admission  by  Penniman  of  the  title  of  the  plaintiff,  and  his  own 
want  of  title  to  any  way  over  the  plaintiff's  land,  by  his  asking 
permission  to  cross.  If  the  letter  referred  to  the  way  in  question,  it 
would  be  important  evidence  against  his  right.  If  it  had  reference 
to  another  place,  and  not  to  this,  then  it  was  no  admission  at  all 
against  his  right  to  use  this  way.  If  the  jury  found  that  the  letter 
referred  to  the  way  in  question,  it  does  not  appear  that  the  plaintiff 
did  not  have  all  the  advantage  he  was  entitled  to  from  it,  and  if  they 
found  it  referred  to  another  place,  and  not  this,  then  it  was  entitled 
to  no  force  at  all  as  an  admission.  It  does  not  appear  to  us  material 
how  Mrs.  Tracy  understood  the  letter,  considered  in  this  light.  If 
it  was  claimed  that  by  her  misunderstanding  of  the  letter,  and  suppo- 
sition that  it  referred  to  this  way,  she  had  conducted  differently,  and 
had  allowed  Penniman  to  use  this  way,  supposing  he  was  acting 
under  the  license  obtained  in  answer  to  the  letter,  or  omitted  to 
put  a  stop  to  his  use  of  it,  supposing  he  acknowledged  her  right,  or 


SECT.    II J  CARMODY    V.    MULROONEY  141 

that  of  her  son,  then  her  misunderstanding  of  the  letter  might  be 
important  as  explaining  her  own  action.  But  nothing  of  this  kind 
appears  in  the  case.  The  letter  was  used  to  show  that  Penniman 
asked  leave  of  Mrs.  Tracy  to  use  this  way,  thus  acknowledging  her 
right,  and  his  own  want  of  right.  If  he  was  speaking  in  the  letter 
of  another  place,  it  was  no  acknowledgment  at  all  as  to  this  way, 
even  if  Mrs.  Tracy  by  mistake  supposed  it  was.  We  find  no  error, 
and  the  judgment  is  affirmed.^ 


CARMODY  V.  MULROOXEY 
87  Wis.  552.     1894. 

Appeal  from  the  Circuit  Court  for  Grant  County. 

The  action  was  brought  to  establish  an  easement  of  right  of  way 
in  the  plaintiff  over  the  defendant's  lands.  The  plaintiff  claimed  a 
right  of  way  over  the  defendant's  lands  by  adverse  user  for  more 
than  twenty  years.  The  defendant  admitted  the  user,  but  denied 
that  it  was  adverse.  There  is  no  conflict  in  the  evidence  on  the  ques- 
tion. The  defendant  and  his  grantor  for  more  than  twenty  years 
maintained  a  private  Avay  from  the  residence  upon  the  premises 
out  to  the  highway,  upon  their  own  lands.  The  plaintiff  and  the 
defendant's  grantor  are  relatives,  —  brothers-in-law.  Their  lands 
adjoined.  The  plaintiff  used  the  same  way  out  to  the  highway  for 
more  than  twenty  years.  Both  worked  upon  the  construction  and 
repair  of  the  w^ay.  The  line  of  way  was  changed,  in  places,  several 
times.  JNTothing  was  ever  said  by  either  to  the  other  as  to  the  right 
of  the  plaintiff  to  use  the  way.  There  was  neither  express  permis- 
sion nor  express  claim  of  right.  There  was  a  finding  and  judgment 
for  the  plaintiff,  from  which  the  defendant  appeals. 

Newman,  J.  One  may  acquire  an  easement  of  right  of  way  over 
the  lands  of  another  by  adverse  user  for  a  period  of  twenty  years. 
To  have  this  result,  such  user  must  be  adverse  to  the  owner  of  the 
land,  under  claim  of  right,  exclusive,  continuous,  uninterrupted,  and 
with  the  knowledge  and  acquiescence  of  the  owner  of  the  estate  over 
which  the  easement  is  claimed.  "Washb.  Easem.  (4th  ed.),  150,  par. 
26.  Such  a  right  can  never  grow  out  of  a  mere  tolerated  or  permis- 
sive use.  Id.  152.  Such  adverse  user,  when  continued  for  twenty 
years,  constitutes  a  perfect  title,  as  conclusive  as  a  deed  or  grant. 
Godd.  Easem.  (Bennett's  ed.),  136.  The  burden  of  proving  the  user 
to  have  been  adverse  is  upon  the  party  claiming  the  easement. 
Washb.  Easem.  150,  par.  36a;  2  Greenl.  Ev.  §  539;  Aynerican  Co. 
V.  Bradford,  27  Cal.  360-367.     Whether  the  use  has  been  adverse  is 

1  Ballard  v.  Demmon,  156  Mass.  449;  Wallace  v.  Fletcher.  30  N.  H.  434, 
accord.  The  cases  are  collected  in  2  Tiffany,  Real  Prop.,  2d  ed.,  §§  514,  515. 
See  Edson  v.  Mumell,  10  All.  (Mass.)   557. 


142  CARMODY    V.    MULROONEY  [CHAP.    II 

a  question  for  the  jury,  or  for  the  court  when  the  trial  is  by  the 
court.  19  Am.  &  Eng.  Ency.  of  Law,  note  on  page  14,  and  cases 
there  cited.  When  it  is  shown  that  there  has  been  the  use  of  an  ease- 
ment for  twenty  years,  unexplained,  it  will  be  presumed  to  have 
been  under  a  claim  of  right  and  adverse,  and  will  be  sufficient  to 
establish  a  right  by  prescription,  and  to  authorize  the  presumption 
of  a  grant,  unless  contradicted  or  explained.  In  such  a  case  the 
owner  of  the  land  has  the  burden  of  proving  that  the  use  of  the  ease- 
ment was  under  some  license,  indulgence,  or  special  contract  incon- 
sistent with  the  claim  of  right  by  the  other  party.  Washb.  Easem. 
156,  par.  31,  and  cases  cited  in  note  5;  Garrett  v.  Jackson,  20  Pa. 
St.  331.  The  finding  and  judgment  of  the  circuit  court  are  sup- 
ported by  this  presumption,  and  so  are  in  accord  with  the  weight 
of  evidence. 

By  the  Court.  —  The  judgment  of  the  circuit  court  is  affirmed.^ 

1  Polly  v.  McCall,  37  Ala.  20,  31;  Fleming  v.  Howard,  150  Cal.  28  (see 
Clarke  v.  Clarke,  133  Cal.  667,  670);  Mitchell  v.  Bain,  142  Ind.  604;  Stewart 
V.  Brumley,  119  S.  W.  (Ky.)  798;  Brookshire  v.  Heap,  186  Ky.  217;  Barnes 
v.  Haynes,  13  Gray  (Mass.)  188;  Novinger  v.  Shoop,  201  S.  W.  (Mo.)  64; 
Moll  V.  Hagerbaumcr,  98  Neb.  555;  Smith  v.  Putnam,  62  N.  H.  369;  Ham- 
mond v.  Zehner,  21  N.  Y.  118  (compare  American  Co.  v.  A''.  }'.  El.  Ry.  Co., 
129  N.  Y.  252);  Pavcij  v.  Vance,  56  Ohio  St.  162;  Steffy  v.  Carpenter,  37  Pa. 
41;  Slater  v.  Price,  96  S.  C.  245;  Muncy  v.  Updyke,  119  Va.  636;  Hawkins  v. 
Conner,  75  W.  Va.  220;  Roberts  v.  Ward,  85  W.  Va.  474,  accord.  And  see 
Rollins  V.  Blackden,  112  Me.  459. 

Contra,  Shea  v.  Gavitt,  89  Conn.  359;  C.  B.  &  Q.  R.  R.  Co.  v.  Ives,  202 
111.  69;  Bontz  v.  Stear,  285  111.  579. 

Compare  Davidson  v.  Nnntz,  177  Ky.  50;  Thompson  v.  Bowes,  115  Me. 
6;  Kilburn  v.  Adams,  7  Met.  (Mass.)  33;  Worrall  v.  Rhoads,  2  Wharton 
(Pa.)  427  (see  Purdon's  Dig.  Stats.  (1910),  p.  5069);  Hutto  v.  Tindall,  6 
Rich.  L.  (S.  C.)  396;  O'Neil  v.  Blodgett,  53  Vt.  213;  Walton  v.  Knight,  62 
W.  Va.  223. 

"  Protests  and  mere  denials  of  right  are  evidence  that  the  right  is  in 
dispute,  as  distinguished  from  a  contested  right.  If  such  protests  and  denials, 
unaccompanied  by  an  act  which  in  law  amounts  to  a  disturbance  and  is 
actionable  as  such,  be  permitted  to  put  the  right  in  abeyance,  the  policy  of 
the  law  will  be  defeated,  and  prescriptive  rights  be  placed  upon  the  most 
imstable  of  foundations.  Suppose  an  easement  is  enjoyed,  say,  for  thirty 
years.  If  after  such  continuance  of  enjoyment  the  right  may  be  overthrown 
by  proofs  of  protests  and  mere  denials  of  the  right,  uttered  at  some  remote 
but  serviceable  time  during  that  period,  it  is  manifest  that  a  right  held  by 
so  uncertain  a  tenure  will  be  of  little  value.  If  the  easement  has  been  inter- 
rupted by  any  act  which  places  the  owner  of  it  in  a  position  to  sue  and 
settle  his  right,  if  he  chooses  to  postpone  its  vindication  until  witnesses  are 
dead  or  the  facts  have  faded  from  recollection,  he  has  his  own  folly  and  supine- 
ness  to  which  to  lay  the  blame.  But  if  by  mere  protests  and  denials  by 
his  adversary,  his  right  might  be  defeated,  he  would  be  placed  at  an  un- 
conscionable disadvantage.  He  could  neither  sue  and  establish  his  right,  nor 
could  he  have  the  advantage  usually  derived  from  long  enjoyment  in  quieting 
titles.  Protests  and  remonstrances  by  the  owTier  of  the  servient  tenement 
against  the  use  of  the  easement,  rather  add  to  the  strengh  of  the  claim  of  a 
prescriptive  right;  for  a  holding  m  defiance  of  such  expostulations  is  demon- 
strative proof  that  the  enjoyment  is  under  a   claim  of  right,  hostile  and 


SECT.    II  ]  CARMODY    V.    MULROONEY  143 

adverse;  and  if  they  be  not  accompanied  by  acts  aniovinting  to  a  disturbance 
of  the  right  in  a  legal  sense,  they  arc  no  interrujjtions  or  obstructions  or  the 
enjoyment."  —  Per  Depue,  J.,  in  Lfhigh  Valley  R.  R.  Co.  v.  McFarlan,  43 
N.  J.  L.  605,  629-631.  Connor  v.  Sullivan,  40  Conn.  26;  Okcsun  v.  Patterson. 
29  Pa.  22;  Dcmuth  v.  Ai7iiveg,  90  Pa.  181;  Junlan  v.  Lany,  22  So.  Car.  159, 
accord. 

Contra,  Chicago  &  N.  W.  R.  R.  Co.  v.  Hoag,  90  III.  339. 

Many  authorities  are  collected  in  2  Tiffany,  Real  Prop.,  2d  ed..  §  528. 

On  interruption  of  user,  see  2  Tiffany,  Real  Prop.,  2d  ed.,  §  527;  Connecti- 
cut, Gen.  Stats.  (1918),  §§  6115-6118;  Indiana,  Annot.  Stat«.  (1914),  §§  6179- 
6181;  Iowa,  Annot.  Code  (1897),  §§  3007-3008;  Maine,  Rev.  States.  (1916),  c. 
110,  §§  12-15;  Massachasetts,  Gen.  Laws.  (1920),  c.  187;  Rhode  Island,  Gen. 
Laws  (1909),  c.  256.  §§  6-7. 

As  to  the  e.xtent  of  the  right  accjuired  by  prescription  where  the  user  has 
been  under  color  of  title,  see  Hoag  v.  Place,  93  Mich.  450,  459.  As  to  whether 
actual  knowledge  by  the  owner  of  the  servient  tenement  is  necessary,  see 
Ward  V.  Warren,  82  N.  Y.  265;  Ludlow  v.  Indian  Orchard  Co.,  177  Mass.  61; 
Spencer  v.  Jennings,  115  Atl.  (Vt.)  270.  As  to  the  exclusive  user,  see  St. 
Cecilia  Soc.  v.  Universal  Car  Co.,  182  N.  W.  (Mich.)  161;  Reid  v.  Garnett, 
101  Va.  47.    As  to  tacking,  see  Leonard  v.  Leonard,  7  All.  (Mass.)  277. 

See  2  Tiffany,  Real  Prop.,  2d  ed.,  §§  521,  522,  529. 


CHAPTER  III 
THE  FORM  OF  CONVEYANCES 

Note.  — On  Seisin  and  Conveyance,  see  1  Gray,  Cas.  on  Prop.,  2d  ed., 
Bk.  Ill,  c.  3,  p.  348;  Warren,  Cas.  on  Prop.,  pp.  504-515;  524-547. 

The  modes  of  conveying  Real  Property  at  common  law  are:  (1)  By  Livery 
of  Seisin;  (2)  By  Deed;  (3)  By  Parol,  or  by  Parol  and  Entry;  (4)  By 
Record;  (5)  By  Special  Custom.  The  first  three  are  dealt  with  in  the  refer- 
ences above,  in  the  present  chapter,  and  in  chapter  VI. 

CONVEYANCES  BY  RECORD. 

"  A.  Fines  and  Recoveries  are  very  ancient  collusive  suits  brought  by 
the  person  to  whom  the  land  is  to  be  conveyed  against  the  per-son  who  is  to 
convey  it,  and  resulting  in  an  acknowledgment  that  the  land  is  the  property 
of  the  complainant  or  demandant. 

"  The  clearest  account  of  their  mode  of  operation  will  be  found  in  2  Bl. 
Com.  348-364.  They  are  dealt  with  more  in  detail  in  Smith's  Real  and  Per- 
sonal Property  (5th  ed.),  955-1055.  Cf.  also  Challis,  Real  Property,  c.  27. 
The  forms  of  fines  and  recoveries  are  given  in  the  appendix  to  2  Bl.  Com. 

"Although  fines  and  recoveries  were  most  commonly  used  to  bar  estates 
tail,  they  were  by  no  means  confined  to  this.  A  fine,  for  instance,  was  the 
means  ordinarily  employed  to  pass  a  married  woman's  interest. 

"I.  (1)  A  tenant  in  fee  simple  in  possession  could  convey  by  fine  or  re- 
covery. Although  the  seisin  was  tortious,  yet  under  the  St.  4.  Hen.  VII. 
(1489)  c.  24,  after  a  fine  with  proclamations  had  been  levied,  the  claims  of  all 
persons,  not  imder  disability,  were  barred  at  the  end  of  five  years  fiftef  the 
fine,  or,  if  their  claims  arose  after  the  fine,  then  five  years  from  the  time  ""hey 
arose.  This  was  in  effect  substituting  a  period  of  five  years  only  for  the 
time  required  by  the  Statute  of  Limitations.  This  result  was  not  worked 
by  a  fine  without  proclamations  nor  by  a  recovery.  (2)  A  fine  by  one  seised 
in  remainder  in  fee  passed  his  interest;  so  although  a  recovery  could  not 
properly  be  sufTered  unless  there  was  a  tenant  to  the  prcvcipe,  that  is,  some 
one  seised  of  an  estate  of  freehold  in  possession,  who  would  join  in  recoverv, 
yet  if  a  recovery  was  suffered  by  a  tenant  in  fee  in  remainder,  without  a 
proper  tenant  to  the  prcecipe,  he  was  bound  by  estoppel.  A  fine  with  procla- 
mations under  the  St.  Hen.  VII.,  levied  by  one  seised  in  fee  in  remainder 
or  reversion,  would,  after  five  years,  bar  all  interests  (except  the  preceding 
estate  which  supported  the  remainder),  although  the  particular  estates  and 
the  remainders  or  reversion  had  been  created  by  a  tortious  conveyance. 
Co.  Lit.  298  a. 

"II.  The  Statute  de  Bonis,  13  Edw.  I.  (1285)  c.  1,  which  is  given  in  the 
1st  vol.  of  the  Cases,  p.  335,  provided  that  an  estate  tail  could  not  be  barred 
by  a  fine.  By  Taltarum's  Case,  Y.  B.  12  Edw.  IV.  19  (1473),  the  validity  of 
a  common  recovery  to  bar  an  estate  tail  was  recognized.  (1)  By  Sts.  4  Hen. 
VII.  c.  24  (1489),  and  32  Hen.  VIII  c.  36  (1540),  a  tenant  in  tail  in  possession 
by  a  fine  levied  with  proclamations  barred  the  heirs  in  tail  of  the  tenant 
immediately,  and,  in  five  years  after  their  respective  rights  accrued,  all  re- 
maindermen and  reversioners  and  other  persons  except  the  Crow^n.  A  re- 
covery, properly  suffered,  barred  immediately  all  persons  except  the  Crown. 
(2)  A  tenant  in  tail  in  remainder  could  under  the  Statutes  above  cited,  by  a 
fine  with  proclamations  and  non-claim,  bar  the  heirs  in  tail  and  outside  per- 
sons, but  not  subsequent  remaindermen  or  the  reversioner.     A  tenant  in  tail 

144 


CHAP.    Ill  J  CONVEYANCE   BY    SPECIAL    CUSTOM  145 

in  remainder  could,  by  a  rcrovinj,  Ikii-  ilic  subsequent  estates,  provided  the 
immediate  tenant  of  the  frceiiold  would  join  in  the  recovery;  but  if  he  did 
not  join,  then,  for  want  of  a  good  tenant  to  the  proecipc,  the  recovery  barred 
neither  the  issue  in  tail  nor  the  remaindermen,  nor  reversioner.  This  was 
partially  altered  by  St.  14  Geo.  II.  c.  20,  §   1    (1740). 

"  III.  (1)  A  fiiie  or  recovery  by  a  tenant  for  life  in  possession  worked  a  for- 
feiture of  his  estate,  and  was  no  bar  to  vested  estates  in  remainder  or  to  the 
reversion,  but  it  destroyed  contingent  remainders.    Doe  d.  Dairies  v.  Gatacre, 

5  Bing.  N.  C.  609  (1839).  Under  tlie  Statute  4  Hen.  VII.  c.  24,  however,  a 
fine  by  tenant  for  life  with  proclamations  and  five  years'  non-claim  barred 
all  persons.  (2)  A  fine  or  recovery  by  a  tenant  for  life  in  remainder  had  no 
effect  except  to  pass  his  interest;  a  fine  by  him  with  proclamations  under  the 
Statute  did  not  bar  any  subsequent  estates  in  remainder  or  reversion,  but 
did  probably  bar,  after  the  period  of  non-claim,  all  outside  claims. 

"  IV.  If  a  fine  was  levied,  with  or  without  proclamations,  or  a  recovery 
suffered  by  a  tenant  for  years,  he  forfeited  his  estate,  but  no  bar  was  created. 
If  a  tenant  for  years  inade  a  tortious  feoffment  in  fee.  and  the  feofTee  levied 
a  fine  with  proclamations,  then  after  the  period  of  non-claim  he  got  a  good 
title. 

"  V.  If  one  who  had  no  estate  in  the  land,  levied  a  fine  or  suffered  a  re- 
covery, it  had  no  effect  on  third  persons,  but  he  was  himself  estopped,  if  he 
afterwards  became  entitled  to  the  land. 

"  The  effect  of  a  fine  with  proclamations  under  the  Statute  of  4  Hen.  VII. 
and  non-claim,  was  to  pass  the  title,  and  not  merely  to  bar  the  remedy.  A 
fine  of  an  incorporeal  hereditament  levied  by  a  life  tenant,  passed  no  more 
than  the  cognizor's  interest ;  .yet  such  fine  was  a  forfeiture,  as  it  was  in  case 
of  a  corporeal  hereditament.     Lit.,  §  618. 

"  The  fine  spoken  of  in  this  note  is  the  ordinary  fine  sur  cognizance  de 
droit,  come  ceo  que  il  ad  de  son  done;  the  fines  sur  cognizance  de  droit 
tantum  and  sur  concessit  had  more  limited  effects. 

"By  the  St.  3  &  4  Wm.  IV,  c.  74,  §  2  (1833),  fines  and  recoveries  were 
abolished. 

"  Fines  and  recoveries  are  generally  done  away  with  or  are  obsolete  in 
the  United  States. 

"  B.  Public  Grants.  These  are  sometimes  made  by  Act  of  the  Legislature, 
sometimes  bv  the  Crown,  or  other  executive  power. 

"See  2  BI.  Com.  344-348;  3  Wash.  R.  P.,  book  iii,  c.  3,  §  1. 

CONVEYANCE  BY  SPECIAL  CUSTOM. 

"  On  the  mode  of  alienating  copyholds,  .see  1  Gray,  Cas.  on  Prop.  (2d  ed.) 
p.  364;  2  Bl.  Com.  365. 

"  The  peculiar  tenure  known  as  tenant  right  is  copyhold,  although  title  is 
passed  by  deed  and  admittance,  instead  of  surrender  and  admittance.  See 
Scriven,  Copyholds  (6th  ed.),  14-17.    But  see  Bingham  v.  Woodgate,  1  Ru.ss. 

6  Myl.  32  (1829). 

"  Limitations  of  copyholds  are  construed  in  the  same  manner  as  limitations 
of  freeholds  and  the  Rule  in  Shelley's  Case  applies  to  copyholds.  Scriv. 
95,  96. 

"The  Statute  Dr  Donis  did  not  applj'  to  copyholds;  and  therefore  if.  in 
a  manor,  a  copyhold  can  be  entailed  (as  is  sometimes  the  case),  it  must  be 
by  virtue  of  a  special  cu.stom;  but  where  there  is  no  custom  to  entail,  a  grant 
of  copyhold  land  to  A.  and  the  heirs  of  his  body  will  generally  give  him  a 
fee  simple  conditional.  Challis,  Real  Prop.,  3d  ed.,  300.  Where  an  entail  of 
a  copyhold  cannot  be  barred  by  the  custom  in  any  other  way,  it  is  barred  by 
a  siuTender.  Scriv.  40-46.  A  copyholder  may  lease  land  for  a  year,  by  the 
general  custom  of  the  realm,  without  his  lord's  license.  Scriv.  192.  Admit- 
tance is  compelled  by  manda^nus  or  bill  in  equity.  Scriv.  366-368,  376."  3 
Gray,  Cas.  on  Prop.,  2d  ed.,  pp.  191,  192. 


146  CONVEYANCES   TO   STRANGERS  [CHAP.    Ill 

SECTION  I. 

CONVEYANCES  TO  STKANGERS. 

Note.  —  At  common  law  estates  of  freehold  in  land  could  be  created  by 
livery  of  seisin.  Estates  of  less  than  freehold  could  be  created  by  parol 
agreement  and  entry.  Present  estates  of  freehold  could  be  transferred  by 
livery  of  seisin.  Present  estates  of  less  than  freehold  could  be  transferred 
by  parol  agreement  and  entry.  Reversions  and  vested  remainders  could  be 
transferred  by  deed.  See  1  Gray,  Cas.  on  Prop.,  2d  ed.,  pp.  341,  342,  348- 
355,  357-363.    Warren,  Cas.  on  Prop.,  pp.  510-512. 

Conveyances  by  livery  of  seisin  might  have  a  tortious  operation;  convey- 
ances b}^  deed  or  parol  and  entiy  were  innocent.  Some  sections  from  Little- 
ton are  given  below  to  bring  out  more  clearly  the  distinction  between  tortious 
and  innocent  conveyances. 

Rights  in  land,  such  as  easements  and  profits,  could  be  created  and  trans- 
ferred by  deed,  but  not  by  parol,  even  though  they  were  for  years  only.  2 
BI.  Com.  317;  Somerset  v.  Fogwell,  5  B.  &  C.  875;  Bird  v.  Higginson,  2  A.  & 
E.  696. 

The  Statute  of  Uses,  27  Hen.  VIII,  c.  10  (1536),  made  possible  new  methods 
of  conveyancing.  A  use,  both  before  and  after  the  Statute,  could  be  raised 
for  a  pecuniaiy  consideration,  called  a  bargain  and  sale;  or,  after  the  Statute, 
by  a  covenant  for  a  consideration  of  blood  or  marriage,  called  a  covenant 
to  stand  seised.  The  use,  or  equitable  interest,  so  raised  was,  by  operation  of 
the  Statute,  converted  into  a  corresponding  legal  estate.  See  1  Gray,  Cas, 
on  Prop.,  (2d  ed.),  pp.  368-416;  Warren,  Cas.  on  Prop.,  pp.  524-528. 

The  Statute  of  Enrolments,  27  Hen.  VIII,  c.  16  (1536),  required  that  all 
bargains  and  sales  of  estates  of  freehold  should  be  enrolled.  This  statute  has 
not  been  adopted  as  part  of  the  law  of  this  country.  It  is  given  in  1  Gray, 
Cas.  on  Prop.,  2d  ed.,  p.  382;  and  in  Warren,  Cas.  on  Prop.,  p.  525. 

The  requirements  of  the  Statute  of  Frands,  29  Car.  II,  c.  3,  §§  1-3  (1677), 
are  given  in  full  below. 

It  was  held  in  Jackson  d.  Gourh  v.  Wood,  12  Johns.  (N.  Y.)  73  (1815),  that 
a  bargain  and  sale  of  a  freehold  estate  must  be  under  seal.  But  see  Kales, 
Estates  and  Future  Interests,  2d  ed.,  §§  64,  456.  The  same  result  has  been 
reached  by  statute  in  a  number  of  states.  As  to  statutoiy  provisions  regard- 
ing the  use  of  seals,  see  Stimson,  Am.  Stat.  Law.,  §  1564,  and  statutes  post 
P- 

Lit.  §  609.     For  if  I  let  land  to  a  man  for  term  of  his  life,  &c., 

and  tlie  tenant  for  life  lettetli  the  same  land  to  another  for  term  of 
years,  &c.,  and  after  my  tenant  for  life  grant  the  reversion  to  another 
in  fee,  and  the  tenant  for  years  attorn,  in  this  case  the  grantee  hath 
in  the  freehold  but  an  estate  for  term  of  the  life  of  his  grantor,  &c., 
and  I  which  am  in  the  reversion  of  the  fee  simple  may  not  enter  hy 
force  of  this  grant  of  the  reversion  made  hy  my  tenant  for  life,  for 
that  by  such  grant  my  reversion  is  not  discontinued,  but  always  re- 
mains unto  me,  as  it  was  before,  notwithstanding  such  grant  of  the 
reversion  made  to  the  grantee,  to  him  and  to  his  heirs,  &c.,  because 
nothing  passed  by  force  of  such  grant,  but  the  estate  which  the 
grantor  hath,  &c. 

Lit.  §  610.  In  the  same  manner  is  it,  if  tenant  for  term  of  life 
by  his  deed  confirm  the  estate  of  his  lessee  for  years,  to  have  and  to 


SECT.    l]  CONVEYANCES   TO   STRANGERS  147 

hold  to  liim  aud  his  heirs,  or  release  to  his  lessee  and  his  heirs,  yet 
the  lessee  for  years  hath  an  estate  but  for  term  of  the  life  of  the 
tenant  for  life,  &c. 

Lit.  §  611.  But  otherwise  it  is  when  tenant  fOr  life  maketh  a 
feoffment  in  fee,  for  by  such  a  feoffment  the  fee  simple  passeth.  For 
tenant  for  years  may  make  a  feoffment  in  fee,  and  by  his  feoffment 
the  fee  simple  shall  pass,  and  yet  he  had  at  the  time  of  the  feoffment 
made  but  an  estate  for  term  of  years,  kc. 

Lit.  §  613.  Also,  if  tenant  in  tail  by  his  deed  grant  to  another 
all  his  estate  which  he  hath  in  the  tenements  to  him  entailed,  to  have 
and  to  hold  all  his  estate  to  the  other,  and  to  his  heirs  forever,  and 
deliver  to  him  seisin  accordingly ;  in  this  case  the  tenant  to  whom  the 
alienation  was  made  hath  no  other  estate  but  for  term  of  the  life 
of  tenant  in  tail.  And  so  it  may  be  well  proved  that  tenant  in  tail 
cannot  grant  nor  alien,  nor  make  any  rightful  estate  of  freehold  to 
another  person,  but  foj"  term  of  his  own  life  only,  &:c. 

Lit.  §  615.  Also,  if  land  be  let  to  a  man  for  term  of  his  life,  the 
remainder  to  another  in  tail,  if  he  in  the  remainder  will  grant  his 
remainder  to  another  in  fee  by  his  deed,  and  the  tenant  for  life 
attorn,  this  is  no  discontinuance  of  the  remainder. 

Lit.  §  617.  x\lso,  if  a  man  be  tenant  in  tail  of  an  advowson  in 
gross,  or  of  a  common  in  gross,  if  he  by  his  deed  will  grant  the  ad- 
vowson or  common  to  another  in  fee,  this  is  no  discontinuance;  for  in 
such  cases  the  grantees  have  no  estate  but  for  term  of  the  life  of 
tenant  in  tail  that  made  the  grant,  &c. 

Lit.  §  618.  And  note,  that  of  such  things  as  pass  by  way  of 
grant,  by  deed  made  in  the  country,  and  without  livery,  there  such 
grant  maketh  no  discontinuance,  as  in  the  cases  aforesaid,  and  in 
other  like  cases,  &c.  And  albeit  such  things  be  granted  in  fee,  by 
fine  levied  in  the  king's  court,  &c.,  yet  this  maketh  not  a  discontinu- 
ance, &c. 

Lit.  §  619.  [Note,  if  I  give  land  to  another  in  tail,  and  he  letteth 
the  same  land  to  another  for  term  of  years,  and  after  the  lessor 
granteth  the  reversion  to  another  in  fee,  and  the  tenant  for  years  at- 
torn to  the  grantee,  and  th(^  term  expireth  during  the  life  of  the  tenant 
in  tail,  by  which  the  grantee  enter,  and  after  the  tenant  in  tail  hath 
issue  and  die;  in  this  ease  this  is  no  discontinuance,  notwithstanding 
the  grant  be  executed  in  the  life  of  the  tenant  in  tail,  for  that  at  the 
time  of  the  lease  made  for  years,  no  new  fee  simi:)le  was  reserved  in 
the  lessor,  but  the  reversion  remained  to  him  in  tail,  as  it  Avas  before 
the  lease  made.]^ 

Lit.  §  620.  But  if  the  tenant  in  tail  make  a  lease  for  term  of  the 
life  of  the  lessee,  &c.,  in  this  case  the  tenant  in  tail  hath  made  a  new 
reversion  of  the  fee  simple  in  him;  because  when  he  made  the  lease 
for  life,  &c.,  he  discontiinicd  the  tail,  (Src,  by  force  of  the  same  lease, 
and  also  he  discontinued  my  reversion,  (Src.     And  it  behooveth  that 

1  Lord  Coke  says  this  is  not  in  the  original,  but  3'ct  is  good  law. 


148  CONVEYANCES   TO   STRANGERS  [CHAP,    III 

tlic  reversion  of  the  fee  simple  be  in  some  person  in  such  case :  and 
it  cannot  be  in  me  which  am  the  donor,  inasmuch  as  my  reversion  is 
discontinued;  ergo,  the  reversion  of  the  fee  ought  to  be  in  the  tenant 
in  tail,  who  discontinued  my  reversion  by  lease,  &c.  And  if  in  this 
case  the  tenant  in  tail  grant  by  his  deed  this  reversion  in  fee  to 
another,  and  the  tenant  for  life  attorn,  &c.,  and  after  the  tenant  for 
life  dieth,  living  the  tenant  in  tail,  and  the  grantee  of  the  reversion 
enter,  &c.,  in  the  life  of  the  tenant  in  tail,  then  this  is  a  discontinu- 
ance in  fee;  and  if  after  the  tenant  in  tail  dieth,  his  issue  may  not 
enter,  but  is  put  to  his  writ  of  fonnedon.  And  the  cause  is,  for  that 
he  which  hath  the  grant  of  such  reversion  in  fee  simple,  hath  the 
seisin  and  execution  of  the  same  land  and  tenements,  to  have  to  him 
and  to  his  heirs  in  his  demesne  as  of  fee,  in  the  life  of  the  tenant 
in  tail. 

And  this  is  by  force  of  the  grant  of  the  said  tenant  in  tail. 

Lit.  §  622.  But  in  this  case,  if  tenant  in  tail  that  grants  the  re- 
version, &c.,  dieth,  living  the  tenant  for  life,  and  after  the  tenant 
for  life  dieth,  and  after  he  to  whom  the  reversion  was  granted  enter, 
&c.,  then  this  is  no  discontinuance,  but  that  the  issue  of  the  tenant 
in  tail  may  well  enter  upon  the  grantee  of  the  reversion;  because 
the  reversion  which  the  grantee  had,  &c.,  was  not  executed,  &c.,  in 
the  life  of  the  tenant  in  tail,  &c.  And  so  there  is  a  great  diversity 
when  tenant  in  tail  maketh  a  lease  for  years,  and  where  he  maketh 
a  lease  for  life;  for  in  the  one  case  he  hath  a  reversion  in  tail,  and 
in  the  other  case  he  hath  a  reversion  in  fee. 

Lit.  §  623.  For  if  land  be  given  to  a  man  and  to  his  heirs  males 
of  his  body  engendered,  who  hath  issue  two  sons,  and  the  eldest  son 
hath  issue  a  daughter  and  dieth,  and  the  tenant  in  tail  maketh  a 
lease  for  years  and  die,  now  the  reversion  descendeth  to  the  younger 
son,  for  that  the  reversion  was  but  in  the  tail,  and  the  youngest  son  is 
heir  male,  &c.  But  if  the  tenant  had  made  a  lease  for  life,  &;c.,  and 
after  died,  now  the  reversion  descendeth  to  the  daughter  of  the  elder 
brother,  for  that  the  reversion  is  in  the  fee  simple,  and  the  daughter 
is  heir  general,  &c. 

Lit.  §  631.  But  where  the  tenant  in  tail  maketh  a  lease  for  years 
or  for  life,  the  remainder  to  another  in  fee,  and  delivereth  livery  of 
seisin  accordingly,  this  is  a  discontinuance  in  fee,  for  that  the  fee 
simple  passeth  by  force  of  the  livery  of  seisin,  &c.^ 

29  Car.  II.  c.  3,  §§  1-3.  For  prevention  of  many  fraudulent 
practices,  wdiich  are  commonly  endeavored  to  be  upheld  by  perjury 
and  subornation  of  perjury;  (2)   be  it  enacted  by  the  King's  most  ex- 

1  "An  Act  of  8  &  9  Victoria,  chapter  106,  section  4,  abolished  all  tortious 
operation  of  jeoffmcnts.  In  this  country  the  common-law  doctrine  of  dw- 
seizin  and  tortious  conveyance  was  in  force  to  some  extent  in  the  colonies 
and  States  on  the  Atlantic  seaboard,  but  the  tortious  effect  of  such  convey- 
ances has  been  abolished  directl.y  by  statute,  or  ceased  because  the  convers- 
ance by  livery  has  itself  fallen  into  disuse."  Kales,  Estates  and  Future  In- 
terests, 2d  ed.,  §  46. 


SECT.    l]  CONVEYANCES   TO    STRANGERS  149 

celleut  majesty,  by  and  with  the  advice  and  consent  of  the  Lords 
Spiritual  and  Temporal,  and  the  Commons,  in  this  present  Parlia- 
ment assembled,  and  by  the  authority  of  the  same.  That  from  and 
after  the  four  and  twentieth  day  of  June,  which  shall  be  in  the  year 
of  our  Lord  one  thousand  six  hundred  seventy  and  seven,  all  leases, 
estates,  interests  of  freehold,  or  terms  of  years,  or  any  uncertain 
interest  of,  in,  to  or  out  of  any  messuages,  manors,  lands,  tenements 
or  hereditaments,  made  or  created  by  livery  and  seisin  only,  or  by 
parol,  and  not  put  in  writing,  and  signed  by  the  parties  so  making 
or  creating  the  same,  or  their  agents  thereunto  lawfully  authorized 
by  writing,  shall  have  the  force  and  effect  of  leases  or  estates  at 
will  only,  and  shall  not  either  in  law  or  equity  be  deemed  or  taken 
to  have  any  other  or  greater  force  or  effect;  any  consideration  for 
making  any  such  parol  leases  or  estates,  or  any  former  law  or 
usage,  to  the  contrary  notwithstanding. 

II.  Except  nevertheless  all  leases  not  exceeding  the  term  of  three 
years  from  the  making  thereof,  whereupon  the  rent  reserved  to  the 
landlord,  during  such  term,  shall  amount  unto  two  third  parts  at 
the  least  of  the  full  improved  value  of  the  thing  demised, 

III.  And  moreover,  That  no  leases,  estates,  or  interests,  either 
of  freehold,  or  terms  of  years,  or  any  uncertain  interest,  not  being 
copyhold  or  customary  interest,  of,  in,  to  or  out  of  any  messuages, 
manors,  lands,  tenements  or  hereditaments,  shall  at  any  time  after 
the  said  four  and  twentieth  day  of  June  be  assigned,  granted  or 
surrendered,  unless  it  be  by  deed  or  note  in  writing,  signed  by  the 
party  so  assigning,  granting  or  surrendering  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing,  or  by  act  and  opera- 
tion of  law. 


150  RELEASES  [CHAP.    Ill 


SECTION  11. 

KELEASES. 

Lit.  §  444.  Releases  are  in  divers  manners,  viz.,  releases  of  all 
the  .right  which  a  man  hath  in  lands  or  tenements,  and  releases  of 
actions  personals  and  reals,  and  other  things.  Releases  of  all  the 
right  which  men  have  in  lands  and  tenements,  &c.,  are  commonly 
made  in  this  form,  or  of  this  effect :  — 

Lit.  §  445.  Know  all  men  by  these  presents,  that  I,  A.  of  B., 
have  remised,  released,  and  altogether  from  me  and  my  heirs  quit- 
claimed (me  A.  de  B.  remisisse,  relaxasse,  et  oinnino  de  me  et  hceredi- 
hus  me'is  quletum  clamasse)  :  or  thus,  for  me  and  my  heirs  quit- 
claimed to  C.  of  D.  all  the  right,  title,  and  claim  (totum  jus,  titulum, 
et  clameum)  which  I  have,  or  by  any  means  may  have,  of  and  in  one 
messuage  with  the  appurtenances  in  F.,  &c.  And  it  is  to  be  under- 
stood, that  these  words,  remisisse  et  quietum  clamasse,  are  of  the 
same  effect  as  these  words,  7'elaxasse. 

Lit.  §  447.  Also,  in  releases  of  all  the  right  which  a  man  hath 
in  certain  lands,  &c.,  it  behooveth  him  to  whom  the  release  is  made 
in  any  case,  that  he  hath  the  freehold  in  the  lands  in  deed,  or  in  law, 
at  the  time  of  the  release  made,  &c.  For  in  every  case  where  he  to 
whom  the  release  is  made  hath  the  freehold  in  deed,  or  in  law,  at 
the  time  of  the  release,  &c.,  there  the  release  is  good. 

Lit.  §  449.  Also,  in  some  cases  of  releases  of  all  the  right,  albeit 
that  he  to  whom  the  release  is  made  hath  nothing  in  the  freehold  in 
deed  nor  in  law,  yet  the  release  is  good  enough.  As  if  the  disseisor 
letteth  the  land  which  he  hath  by  disseisin  to  another  for  term  of  his 
life,  saving  the  reversion  to  him,  if  the  disseisee  or  his  heir  release  to 
the  disseisor  all  the  right,  &c.,  this  release  is  good,  because  he  to 
whom  the  release  is  made,  had  in  laAv  a  reversion  at  the  time  of  the 
release  made. 

Lit.  §  450.  In  the  same  manner  it  is,  where  a  lease  is  made  to  a 
man  for  term  of  life,  the  remainder  to  another  for  term  of  another 
man's  life,  the  remainder  to  the  third  in  tail,  the  remainder  to  the 
fourth  in  fee,  if  a  stranger  which  hath  right  to  the  land  releaseth 
all  his  right  to  any  of  them  in  the  remainder,  such  release  is  good, 
because  every  of  them  hath  a  remainder  in  deed  vested  in  him. 

Lit.  §  451.  But  if  the  tenant  for  term  of  life  be  disseised,  and 
afterwards  he  that  hath  right  (the  possession  being  in  the  disseisor) 
releaseth  to  one  of  them  to  whom  the  remainder  was  made  all  his 
right,  this  release  is  void,  because  he  had  not  a  remainder  in  deed  at 
the  time  of  the  release  made,  but  only  a  right  of  a  remainder. 

Lit.  §  459.  Also,  if  a  man  letteth  to  another  his  land  for  term 
of  years,  if  the  lessor  release  to  the  lessee  all  his  right,  &g.,  before 


SECT.    II J  RELEASES  151 

that  the  lessee  had  eutered  into  the  same  laud  by  force  of  the  same 
lease,  such  release  is  void,  for  that  the  lessee  had  not  possession  in 
the  land  at  the  time  of  the  release  made,  but  only  a  right  to  have  the 
same  land  by  force  of  the  lease.  But  if  the  lessee  enter  into  the  land 
and  hath  possession  of  it  by  force  of  the  said  lease,  then  such  release 
made  to  him  by  the  feoffor,  or  by  his  heir,  is  sufficient  to  him  by 
reason  of  the  privity  which  by  force  of  the  lease  is  between  them,  &c. 

Lit.  §  460.  In  the  same  manner  it  is,  as  it  seemeth,  where  a 
lease  is  made  to  a  man  to  hold  of  the  lessor  at  his  will,  by  force  of 
which  lease  the  lessee  hath  possession :  if  the  lessor  in  this  case  make 
a  release  to  the  lessee  of  all  his  right,  &c.,  this  release  is  good  enough 
for  the  privity  which  is  between  them;  for  it  shall  be  in  vain  to 
make  an  estate  by  a  livery  of  seisin  to  another,  where  he  hath  posses- 
sion of  the  same  land  by  the  lease  of  the  same  man  before,  kc. 

But  the  contrary  is  holden,  Pasch.  2  E.  4,  by  all  the  justices.^ 

Lit.  §  461.  But  where  a  man  of  his  own  head  occupieth  lands 
or  tenements  at  the  will  of  him  which  hath  the  freehold,  and  such 
occupier  claimeth  nothing  but  at  will,  &c.,  if  he  which  hath  the  free- 
hold will  release  all  his  right  to  the  occupier,  &c.,  this  release  is  void, 
because  there  is  no  privity  between  them  by  the  lease  made  to  the 
occupier,  nor  by  other  manner,  &c. 

Lit.  §  465.  Also,  releases  according  to  the  matter  in  fact,  some- 
times have  their  effect  by  force  to  enlarge  the  state  of  him  to  whom 
the  release  is  mJkle.  As  if  I  let  certain  land  to  one  for  term  of  years, 
by  force  whereof  he  is  in  possession,  and  after  I  release  to  him  all 
the  right  which  I  have  in  the  land  without  putting  more  words  in 
the  deed,  and  deliver  to  him  the  deed,  then  hath  he  an  estate  but  for 
term  of  his  life.  And  the  reason  is,  for  that  when  the  reversion  or 
remainder  is  in  a  man  who  will  by  his  release  enlarge  the  estate  of 
the  tenant,  (Src,  he  shall  have  no  greater  estate,  but  in  such  manner 
and  form  as  if  such  lessor  were  seised  in  fee,  and  by  his  deed  will 
make  an  estate  to  one  in  a  certain  form,  and  deliver  to  him  seisin 
by  force  of  the  same  deed;  if  in  such  deed  of  feoffment  there  be 
not  any  word  of  inheritance,  then  he  hath  but  an  estate  for  life;  and 
so  it  is  in  such  releases  made  by  those  in  the  reversion  or  in  the  re- 
mainder. For  if  I  let  land  to  a  man  for  term  of  his  life,  and  after 
I  release  to  him  all  my  right  without  more  saying  in  the  release,  his 
estate  is  not  enlarged.    But  if  I  release  to  him  and  to  his  heirs,  then 

1  "  By  these  two  sections  is  to  be  observed  a  diversity  between  a  tenant 
at  will,  and  a  tenant  at  sufferance;  for  a  release  to  a  tenant  at  will  is  good, 
because  between  them  there  is  a  possession  with  a  privity;  but  a  release  to 
a  tenant  at  sufferance  is  void,  bcause  he  hath  a  possession  without  privity. 
As  if  lessee  for  years  hold  over  his  term.  Sec,  a  release  to  him  is  void,  for 
that  there  is  no  privity  betwoen  them;  and  so  are  the  books  that  speak  of 
this  matter  to  be  understood. 

"  '  But  the  contrary  is  holden,'  &c.  This  is  of  a  new  addition,  and  the 
book  here  cited  ill  understood,  for  it  is  to  be  understood  of  a  tenant  at  suffer- 
ance."    Co.  Lit.  270  b. 


152  RELEASES  [CHAP.    Ill 

Le  hath  a  fee  simple;  and  it"  1  release  to  him  and  to  his  heirs  of 
his  body  begotten,  then  he  hath  a  fee  tail,  &c.  And  so  it  behooveth 
to  specify  in  the  deed  what  estate  he  to  whom  the  release  is  made 
shall  have. 

Lit.  §  466.  Also,  sometimes  releases  shall  inure  de  mitter,  and 
vest  the  right  of  him  which  makes  the  release  to  him  to  whom  the 
release  is  made.  As  if  a  man  be  disseised,  and  he  releaseth  to  his 
disseisor  all  his  right,  in  this  case  the  disseisor  hath  his  right,  so  as 
where  before  his  state  was  wrongful,  now  by  this  release  it  is  made 
lawful  and  right. 

Lit.  §  467.  But  here  note,  that  when  a  man  is  seised  in  fee 
simple  of  any  lands  or  tenements,  and  another  will  release  to  him 
all  the  right  which  he  hath  in  the  same  tenements,  he  needeth  not 
to  speak  of  the  heirs  of  him  to  whom  the  release  is  made,  for  that 
he  hath  a  fee  simple  at  the  time  of  the  release  made.  For  if  the  re- 
lease was  made  to  him  for  a  day,  or  an  hour,  this  shall  be  as  strong 
to  him  in  law  as  if  he  had  released  to  him  and  his  heirs.  For  when 
his  right  was  once  gone  from  him  by  his  release  without  any  condi- 
tion, &c.,  to  him  that  hath  the  fee  simple  it  is  gone  forever. 

Lit.  §  468.  But  where  a  man  hath  a  reversion  in  fee  simple, 
or  a  remainder  in  fee  simj)le,  at  the  time  of  the  release  made,  there 
if  he  will  release  to  the  tenant  for  years,  or  for  life,  or  to  the  tenant 
in  tail,  he  ought  to  determine  the  estate  which  he  to  whom  the  release 
is  made  shall  have  by  force  of  the  same  release,  for  that  such  release 
shall  inure  to  enlarge  the  estate  of  him  to  whom  the  release  is  made. 

Lit.  §  469.  But  otherwise  it  is  where  a  man  hath  but  a  right  to 
the  land,  and  hath  nothing  in  the  reversion  nor  in  the  remainder  in 
deed.  For  if  such  a  man  release  all  his  right  to  one  which  is  tenant 
in  the  freehold,  all  his  right  is  gone,  albeit  no  mention  be  made  of 
the  heirs  of  him  to  whom  the  release  is  made.  For  if  I  let  lands  to 
one  for  term  of  his  life,  if  I  after  release  to  him  to  enlarge  his  estate, 
it  behooveth  that  I  release  to  him  and  to  his  heirs  of  his  body  en- 
gendered, or  to  him  and  his  heirs,  or  by  these  words,  To  have  and  to 
hold  to  him  and  to  his  heirs  of  his  body  engendered,  or  to  the  heirs 
male  of  his  body  engendered,  or  such  like  estates,  or  otherwise  he 
hath  no  greater  estate  than  he  had  before. 

Lit.  §  470.  But  if  my  tenant  for  life  letteth  the  same  land  over 
to  another  for  term  of  the  life  of  his  lessee,  the  remainder  to  another 
in  fee,  now  if  I  release  to  him  to  whom  my  tenant  made  a  lease  for 
term  of  life,  I  shall  be  barred  forever,  albeit  that  no  mention  be  made 
of  his  heirs,  for  that  at  the  time  of  the  release  made  I  had  no  rever- 
sion, but  only  a  right  to  have  the  reversion.  For  by  such  a  release, 
and  the  remainder  over,  which  my  tenant  made  in  this  case,  my  rever- 
sion was  discontinued,  &c.,  and  this  release  shall  inure  to  him  in  the 
remainder,  to  have  advantage  of  it,  as  well  as  to  the  tenant  for 
term  of  life. 

Lit.  5  471.     For  to  this  intent  the  tenant  for  term  of  life  and  he 


SECT.    II  ]  RELEASES  153 

in  the  remainder  are  as  one  tenant  in  law,  and  are  as  if  one  tenant 
were  sole  seised  in  his  demesne  as  of  fee  at  the  time  of  such  release 
made  unto  him,  &e. 

Lit.  §  479.  But  releases  which  inure  by  way  of  extinguishment 
against  all  persons,  are  where  he  to  whom  the  release  is  made  cannot 
have  that  which  to  him  is  released.  As  if  there  be  lord  and  tenant, 
and  the  lord  release  to  the  tenant  all  the  right  which  he  hath  in  the 
seigniory,  or  all  the  right  which  he  hath  in  the  land,  kc,  this  release 
goeth  by  wa^^  of  extinguishment  against  all  persons,  because  that  the 
tenant  cannot  have  service  to  receive  of  himself. 

Lit.  §  480.  In  the  same  manner  is  it  of  a  release  made  to  the 
tenant  of  the  land  of  a  rent-charge  or  common  of  pasture,  &c.,  be- 
cause the  tenant  cannot  have  that  which  to  him  is  released,  &c.,  so 
such  releases  shall  inure  by  way  of  extinguishment  in  all  ways.^ 

1  A  release  inuring  by  way  of  nutter  Uestate  is  "  where  two  persons  come 
in  by  the  same  feudal  contract,  as  joint-tenants  or  coparceners,  and  one  of 
them  releases  to  the  other  the  benefit  of  it.  In  releases  which  operate  by  this 
last  mode,  the  releasee  being  supposed  to  be  already  seised  of  the  inheritance 
by  virtue  of  the  former  feudal  contract,  and  the  release  only  operating  as 
a  discharge  from  the  right  or  pretension  of  another  seised  under  the  same 
contract,  words  of  inheritance  in  the  release  are  useless;  but  where  the  re- 
lease operates  by  enlargement,  the  releasee  having  no  such  previous  inheri- 
tance, and  fiefs  being  either  for  life  or  in  fee,  as  they  are  originally  granted, 
the  release  gives  the  estate  to  the  releasee  for  his  life  only,  unless  it  be  ex- 
pressly made  to  him  and  his  heirs."    Butler's  note  to  Co.  Lit.  273  b. 


154  SUltRENDEIiS  [chap.    Ill 


SECTIOAT  III 

SURRENDERS 

Co.  Lit.  337  b.  "  Surrender,"  sursum  redditio,  properly  is  a 
yielding  up  an  estate  for  life  or  years  to  him  that  hath  an  immediate 
estate  in  reversion  or  remainder,  wherein  the  estate  for  life  or  years 
may  drown  by  mutual  agreement  between  them. 

Co.  Lit.  338  a.  A  surrender  properly  taken  is  of  two  sorts,  viz. 
a  surrender  in  deed,  or  by  express  words,  (whereof  Littleton  here 
putteth  an  example,)  and  a  surrender  in  law  wrought  by  consequent 
by  operation  of  law.  Littleton  here  putteth  his  case  of  a  surrender 
of  an  estate  in  possession,  for  a  right  cannot  be  surrendered.  And 
it  is  to  be  noted,  that  a  surrender  in  law  is  in  some  cases  of  greater 
force  than  a  surrender  in  deed.  As  if  a  man  make  a  lease  for  years 
to  begin  at  Michaelmas  next,  this  future  interest  cannot  be  sur- 
rendered, because  there  is  no  reversion  wherein  it  may  drown;  but 
by  a  surrender  in  law  it  may  be  drowned.  As  if  the  lessee  before 
Michaelmas  take  a  new  lease  for  years  either  to  begin  presently,  or 
at  Michaelmas,  this  is  a  surrender  in  law  of  the  former  lease.  Fortior 
et  cequior  est  dispositio  legis  quam  hominis. 

Also  there  is  a  surrender  without  deed,  whereof  Littleton  putteth 
here  an  example  of  an  estate  for  life  of  lands,  which  may  be  sur- 
rendered without  deed,  and  without  livery  of  seisin;  because  it  is 
but  a  yielding,  or  a  restoring  of,  the  state  again  to  him  in  the  imme- 
diate reversion  or  remainder,  which  are  always  favored  in  law.  And 
there  is  also  a  surrender  by  deed;  and  that  is  of  things  that  lie  in 
grant,  whereof  a  particular  estate  cannot  commence  without  deed, 
and  by  consequent  the  estate  cannot  be  surrendered  without  deed. 
But  in  the  example  that  Littleton  here  putteth,  the  estate  might 
commence  without  deed,  and  therefore  might  be  surrendered  Avith- 
oiit  deed. '  And  albeit  a  particular  estate  be  made  of  lands  by  deed, 
yet  may  it  be  surrendered  without  deed,  in  respect  of  the  nature  and 
quality  of  the  thing  demised,  because  the  particular  estate  might 
have  been  made  Avithout  deed ;  and  so  on  the  other  side.  If  a  man  be 
tenant  by  the  curtesy,  or  tenant  in  dower  of  an  advowson,  rent,  or 
other  thing  that  lies  in  grant;  albeit  there  the  estate  begin  without 
deed,  yet  in  respect  of  the  nature  and  quality  of  the  thing  that  lies 
in  grant  it  cannot  be  surrendered  without  deed.  And  so  if  a  lease 
for  life  be  made  of  lands,  the  remainder  for  life ;  albeit  the  remainder 
for  life  began  without  deed,  yet  because  remainders  and  reversions, 
though  they  be  of  lands,  are  things  that  lie  in  grant,  they  cannot  be 
surrendered  without  deed.  See  in  my  Reports  plentiful  matter  of 
surrenders.^ 

1  See  St.  29  Car.  II,  c.  3.  §  3  (1677)  given  ante.  p.  148. 
Surrenders  of  estates  for  years  are  dealt  with  further  in  chapter  VI.  on 
Landlord  and  Tenant,  po^^t,  p. 


SECT.    Ill]  EXCHANGE  155 


NOTE. 

Exchange.  Lit.  §  62.  And  in  some  case  a  man  shall  have  by  the  grant 
of  another  a  fee  simple,  fee  tail,  or  freehold  without  livery  of  seisin.  As  if 
there  be  two  men,  and  each  of  them  is  seised  of  one  quantity  of  land  in  one 
county,  and  the  one  granteth  his  land  to  the  other  in  exchange  for  the  land 
which  the  other  hath,  and  in  like  manner  the  other  granteth  his  land  to  the 
first  grantor  in  exchange  for  the  land  which  the  first  grantor  hath;  in  this 
case  each  may  enter  into  the  other's  land,  so  put  in  exchange,  without  any 
livery  of  seisin;  and  such  exchange  made  by  parol  of  tenements  within  the 
same  county  without  writing  is  good  enough. 

Lit.  §  63.  And  if  the  lands  or  tenements  be  in  divers  counties,  viz.,  that 
which  the  one  hath  in  one  county,  and  that  which  the  other  hath  in  another 
county,  there  it  behooveth  to  have  a  deed  indented  made  between  them  of 
this  exchange. 

Lit.  §  64.  And  note,  that  in  exchanges  it  behooveth,  that  the  estates 
which  both  parties  have  in  the  lands  so  exchanged,  be  equal;  for  if  the  one 
willeth  and  grant  that  the  other  shall  have  his  land  in  fee  tail  for  the  land 
which  he  hath  of  the  grant  of  the  other  in  fee  simple,  although  that  the  other 
agree  to  this,  yet  this  exchange  is  void,  because  the  estates  be  not  equal. 

Lit.  §  65.  In  the  same  manner  it  is,  where  it  is  granted  and  agreed  be- 
tween them,  that  the  one  shall  have  in  the  one  land  fee  tail,  and  the  other 
in  the  other  land  but  for  term  of  life;  or  if  the  one  .shall  have  in  the  one 
land  fee  tail  general,  and  the  other  in  the  other  land  fee  tail  especial,  etc. 
So  always  it  behooveth  that  in  exchange  the  estates  of  both  parties  be  equal, 
viz.,  if  the  one  hath  a  fee  simple  in  the  one  land,  that  the  other  shall  have 
like  estate  in  the  other  land;  and  if  the  one  hath  fee  tail  in  the  one  land, 
the  other  ought  to  have  the  like  estate  in  the  other  land,  &c.,  and  so  of 
other  estates.  But  it  is  nothing  to  charge  of  the  equal  value  of  the  lands; 
for  albeit  that  the  land  of  the  one  be  of  a  far  greater  value  than  the  land 
of  the  other,  this  is  nothing  to  the  purpose,  so  as  the  estates  made  by  the 
exchange  lae  equal.  And  so  in  an  exchange  there  be  two  grants,  for  each 
party  granteth  his  land  to  the  other  in  exchange,  &c.  and  in  each  of  their 
grants  mention  shall  be  made  of  the  exchange. 

Co.  Lit.  5L  b.  To  shut  up  this  point,  there  be  five  things  necessary  to  theV 
perfection  of  an  exchange.  L  That  the  estates  given  be  equal.  2.  That  this 
word  (excambium,  exchange)  be  used,  which  is  so  individually  requisite,  as  it 
cannot  be  supplied  by  any  other  word,  or  described  by  any  circumlocution: 
and  herewith  agreeth  Littleton  afterwards  in  this  section.  In  the  book  of 
Domesday  I  find,  "  Hanc  terram  cambiavit  Hugo  Briccuino  quod  modo  tenet 
comes  Meriton,  et  ipsum  scambium  valet  duplum." 

"  Hugo  de  Belcamp  pro  escambio  de  Warres." 

3.  That  there  be  an  execution  by  entry  or  claim  in  the  life  of  the  parties, 
as  hath  been  said.  4.  That  if  it  be  of  things  that  lie  in  grant,  it  must  be  by 
deed.  5.  If  the  lands  be  in  several  counties,  there  ought  to  be  a  deed  in- 
dented, or  if  the  thing  lie  in  grant,  albeit  they  be  in  one  county. 

Perk.  §  265.  If  an  exchange  be  made  between  me  and  T.  K.,  viz.,  that 
after  the  feast  of  Christmas,  he  shall  have  my  manor  of  Dale,  in  exchange  for 
for  his  manor  of  Sale,  ifec,  it  is  a  good  exchange;, and  each  of  us  may  enter 
into  the  other's  manor,  after  Christmas,  &c. 

See  Statute  of  Frauds,  St.  29  Car.  II,  c.  3  (1677),  St.  8  ct  9  Vict.,  c.  106, 
§  3  (1845),  and  Wind.wr  v.  Cnllimon,  32  Orcg.  297. 

Partition.    See  Joint  Ownership,  post,  p. 

Form  of  Conveyance.  Lit.  §  370.  And  for  that  such  conditions  are 
most  commonly  put  and  specified  in  deeds  indented,  somewhat  shall  be  here 


156  FORM   OF   CONVEYANCE  [CHAP.    Ill 

said  (to  thee,  my  son)  of  an  indenture  and  of  a  deed  poll  concerning  condi- 
tions. And  it  is  to  be  understood,  that  if  the  indenture  be  bipartite,  or  tri- 
partite, or  quadripartite,  all  the  parts  of  the  indenture  are  but  one  deed  in 
law,  and  every  part  of  the  indenture  is  of  as  great  force  and  effect  us  all  the 
parts  together  be. 

Co.  Lit.  229  a.  "  In  deeds  indented."  Those  are  called  by  several  names, 
as  scriptum  indentatum,  carta  indentata,  ncriptura  indcntata,  indcntura, 
literce  indeniatce.  An  indenture  is  a  writing  containing  a  conveyance,  bar- 
gain, contract,  covenants,  or  agreements  between  two  or  more,  and  is  indented 
in  the  top  or  side  answerable  to  another  that  likewise  comprehendeth  the  self- 
same matter,  and  is  called  an  indenture,  for  that  it  is  so  indented,  and  is 
called  in  Greek  aiyypa(pov 

If  a  deed  beginneth,  hcec  indcntura,  etc.,  and  in  troth  the  parchment  or 
paper  is  not  indented,  this  is  no  indenture,  because  words  cannot  make  it 
indented.  But  if  the  deed  be  actually  indented,  and  there  be  no  words  of 
indenture  in  the  deed,  yet  it  is  an  indenture  in  law;  for  it  may  be  an  in- 
denture  without  words,   but  not  by   words   without  indenting. 

"  In  deeds  indented."  And  here  it  is  to  be  understood,  that  it  ought  to  be 
in  parchment  or  in  paper.  For  if  a  writing  be  made  upon  a  piece  of  wood, 
or  upon  a  piece  of  linen,  or  in  the  bark  of  a  tree,  or  on  a  stone,  or  the  like, 
&c.,  and  the  same  be  sealed  or  delivered,  yet  it  is  no  deed,  for  a  deed  must 
be  written  either  in  parchment  or  paper,  as  before  is  said,  for  the  writing 
upon  these  is  least  subject  to  alteration  or  corruption. 

"  If  the  indenture  be  bipartite,  or  tripartite,  or  quadripartite,  &c."  "  Bi- 
partite "  is,  when  there  be  two  parts  and  two  parties  to  the  deed.  "  Tri- 
partite," when  there  are  three  parts  and  three  parties ;  and  so  of  "  quadripar- 
tite," "  quinquepartite,"  &c. 

"And  of  a  deed  poll."  A  deed  poll  is  that  which  is  plain  without  any  in- 
denting, so  called  because  it  is  cut  even,  or  polled.  Every  deed  that  is 
pleaded  shall  be  intended  to  be  a  deed  poll,  unless  it  be  alleged  to  be 
indented. 

"All  the  parts  of  the  indenture  are  but  one  deed  in  law."  If  a  man  by 
deed  indented  make  a  gift  in  tail,  and  the  donee  dieth  without  issue,  that 
part  of  the  indenture  which  belonged  to  the  donee  doth  now  belong  to  the 
donor,  for  both  parts  do  make  but  one  deed  in  law. 

''And  every  part  of  the  indenture  is  of  as  great  force,  &c."  This  is  mani- 
fest of  itself,  and  is  proved  by  the  books  aforesaid. 

It  is  to  be  observed,  that  if  the  feoffer,  donor,  or  lessor  seal  the  part  of 
the  indenture  belonging  to  the  feoffee,  &c.,  the  indenture  is  good,  albeit  the 
feoffee  never  sealeth  the  counterpart  belonging  to  the  feoffer,  &c.  See  also 
Butler's  note  (138)  ad  loc. 

On  the  reason  why  deeds  are  required  to  be  on  paper  or  parchment,  see 
Pollock,  Contracts,  2d  ed.,  p.  129. 

In  Burchell  v.  Clark,  1  C.  P.  D.  602;  s.  c.  2  C.  P.  D.  88  (1876),  the 
habendum  of  a  lease  stated  the  term  as  ninety-four  and  one  quarter  years, 
the  reddendum  stated  it  as  ninety-one  and  one  quarter  years,  and  in  the 
counterpart  the  habendum  and  reddendum  both  stated  the  term  as  ninety- 
one  and  one  quarter  years.  The  Common  Pleas  Division  {Brett  and  Archi- 
bald, JJ.)  held,  that  the  statement  of  the  habendum  must  prevail.  But  the 
Court  of  Appeal  (Cockbum,  C.  J.,  and  Bramwcll  and  Amplett.  JJ.;  Kelly, 
C.  B.,  dissenting)  reversed  the  judgment  of  the  Common  Pleas  Division. 

Recital  of  Consideration.  "  It  is  at  least  well  settled  that  the  recital  of 
consideration  in  a  deed  of  conveyance  estops  the  grantor  to  deny  the  exist- 
ence of  that  consideration  for  the  purpose  of  impeaching  the  validity  of  the 


SECT.    Ill]  RECITAL    OF    CONSIDERATION  157 

deed,  as  a  deed  of  bargain  and  sale.  3  Washburn  on  Real  Property  (6th  ed.) 
§  2283;  Stannard  v.  Aurora,  etc.  R.  R.  Co.,  220  111.  469.  Lord  Hardwicke 
was  of  the  opinion  that  for  whatever  purpose  such  evidence  was  offered,  proof 
could  not  be  given  that  the  consideration  stated  in  a  deed  was  in  fact 
not  the  whole  consideration,  unless  such  words  '  and  other  considerations ' 
followed  the  statement  of  specific  consideration.  Peacock  v.  Monk,  1  Ves. 
Sr.  127,  128.  But  so  strict  a  rule  is  no  longer  applied  either  in  England  or 
America.  By  a  relaxation  originating  in  equity  and  extending  to  courts  of 
law,  additional  consideration  may  be  shown  which  is  not  repugnant  to  the 
consideration  named.  And,  generally,  at  the  present  time,  even  though  the 
consideration  in  fact  was  entirely  different  from  the  consideration  named 
in  the  fleed,  and  not  merely  additional  to  it,  the  truth  may  be  shown  for  any 
purpose  except  the  impeachment  of  the  validity  of  the  deed  for  lack  of 
consideration,  unless  the  stated  consideration  is  promissory  in  character  and 
not  merely  a  recital  of  fact."     Williston,  Contracts,  §    115a. 

See  Trajion  v.  Howes,  102  Mass.  533,  541;  Clifford  v.  Turrill,  9  Jur.  633; 
Kales,  Estates  and  Future  Interests,  2d  ed.,  §  62. 

"  If  owing  to  some  rule  of  law,  a  deed  fail  to  take  effect  in  the  manner 
intended,  it  will,  if  possible,  be  construed  so  as  to  take  effect  in  some  other 
manner  which  will  carry  the  expressed  general  intention  of  the  parties 
into  effect."  —  Elphinstone,  Deeds,  40.  A  case  illustrating  this  important 
rule  is  Roe  v.  Tranmer,  2  Wils.  75.  See  also  cases  in  Elphinstone;  Rogers 
V.  Sisters  of  Charity,  97  Md.  550;  Carr  v.  Richardson,  157  Mass.  576;  Eckman 
V.  Eckman,  68  Pa.  460,  470;  Kales,  Estates  and  Future  Interests,  2d  ed., 
§  456. 


CHAPTER  IV 
DESCRIPTION  OF  PROPERTY  GRANTED 

SECTION  I 

LAND  NOT  APPURTENANT  TO  LAND. 

ARCHER  V.  BEI^[NETT 
1  Lev.  131.     1664. 

Ejectment,  and  upon  I^ot  guilty,  a  special  verdict :  A  man  seised 
of  a  close,  on  one  part  whereof  was  a  house,  and  on  another  part 
thereof  was  a  kiln;  and  also  of  two  mills  adjoining  to  the  close;  and 
used  and  occupied  them  all  together  till  1655,  when  he  divided 
them,  and  sold  the  house  and  a  part  of  the  close,  and  reserved  the 
other  part  and  the  kiln,  and  used  them  with  the  mills  (and  in  truth 
the  kiln  was  a  kiln  for  the  drying  of  oats,  and  the  mills  were  for 
the  making  of  oat-meal,  hut  this  was  not  found  by  the  verdict). 
And  afterwards  he  sold  the  mills  cum  pertinentiis  to  the  plaintiif  : 
and  whether  the  kiln,  and  the  parts  of  the  close  on  which  they  stood, 
should  pass  to  the  plaintiff,  was  the  question.  And  it  was  held 
clearly  by  the  court,  that  they  did  not  pass;  for  by  the  grant  of  a 
messuage  or  lands  cum  perilnentils,  any  other  land  or  thing  cannot 
pass,  though  by  the  words  cum,  terris  perUnentibus  it  would:  and 
gave  judgment  for  the  defendant.  But  by  Wyndham,  Justice,  if  all 
the  matter  had  been  found,  and  that  the  kiln  was  necessary  for  the 
use  of  the  mills,  and  without  which  they  were  not  useful,  the  kiln 
had  passed  as  part  of  the  mills,  though  not  as  appurtenances.  As 
by  the  grant  of  a  messuage,  the  conduits  and  AvaterpijDCS  shall  pass 
as  parcel,  though  they  are  remote;  to  which  no  answer  was  given.^ 

1  In  Hill  v.  Grange,  1  Plowd.  164  (1557),  the  question  was  what  passed  by 
a  demise  of  a  messuage,  with  all  the  lands  to  the  same  messuage  appertain- 
ing. The  judges  "  all  argued  to  the  same  intent,  and  agreed  unanimously 
that  land  could  not  be  appurtenant  to  a  messuage  in  the  true  sense  of  the 
word  appertaining.  For  a  messuage  consists  of  two  things,  viz.,  the  land 
and  the  edifice;  and  before  it  was  built  upon  it  was  but  land,  and  then  land 
cannot  be  appurtenant  to  land.  For  a  thing  of  one  substance  cannot  be 
appurtenant  to  a  thing  of  the  same  substance,  and  when  it  is  built  upon 
then  it  is  a  messuage,  and  consists  in  a  great  measure  of  the  same  substance 
that  it  did  before.  But  the  name  is  changed  entirely,  so  that  if  the  building 
afterwards  falls  to  decay,  yet  it  shall  not  have  the  name  of  land,  although 
there  be  nothing  in  substance  left  but  the  land,  but  it  shall  be  called  a  tojt, 
which  is  a  name  superior  to  land,  and  inferior  to  messuage;  and  this  name 
it  shall  have  in  respect  of  the  dignity  which  it  once  bore.  But  the  chief 
substance   of  a   messuage   is  the   soil,   although   the   superstructure   and   the 

158 


SECT.    l]  ARCHER    V.    BENNETT  159 

soil  are  one  efltire  thing;  and  tlien  nothing  can  be  appurtenant  to  another 
but  where  it  is  of  another  nature  and  substance.  And  therefore  it  was  said, 
there  is  hcereditaa  corporata  and  hceredita.'i  incorporata.  Ha:rcditas  corporata 
is  such  as  messuage,  land,  meadow,  pasture,  rents,  and  the  like,  which  have 
substance  in  them,  and  may  continue  always.  But  hcereditas  incorporata 
is  such  as  advowsons,  villains,  ways,  commons,  courts,  piscaries,  and  the  like, 
which  are  or  may  be  appendant  or  appurtenant  to  inheritances  corporate; 
and  such  things  are  and  may  be  termed  appurtenances.  And  Bracton  calls 
the  things  which  are  inheritances  corporate  things  corporeal ;  and  after  he 
has  treated  of  corporeal  things,  he  has  a  chapter  concerning  appurtenances, 
wherein  he  treats  of  such  things  corporeal,  ut  supra,  which  are  belonging, 
appendant,  or  appurtenant  to  things  incorporeal.  But  a  gross  name  may 
contain  divers  things  corporeal,  as  a  manor,  monastery,  rectory,  castle,  honor, 
and  the  like,  are  things  compound,  and  may  contain  altogether  messuages, 
lands,  meadows,  wood,  and  such  like,  and  a  thing  corporeal  may  be  parcel 
of  a  gross  name,  and  of  a  thing  compound,  but  one  simple  thing  corporeal 
cannot  be  a  parcel  of  or  appurtenant  to  another  simple  thing  corporeal.  As 
land  cannot  be  parcel  of  or  appurtenant  to  meadow,  nor  meadow  parcel  of 
or  appurtenant  to  pasture,  nor  pasture  parcel  of  or  appurtenant  to  wood, 
nor  can  land  be  parcel  of  or  appurtenant  to  a  messuage,  nor  to  any  other 
thing  corporeal,  for  these  things  are  but  simple  things,  which  of  themselves 
cannot  receive  or  include  other  things  coiporeal.  But  an  advowson,  way, 
estovers,  and  such  like  things  incorporeal  may  well  enough  be  appurtenant 
to  a  messuage,  and  so  is  the  difference.  And  although  it  is  here  pleaded  that 
the  land  had  been  appurtenant  to  the  messuage  from  time  immemorial,  this 
pleading  or  averment  is  to  no  purpose  or  effect.  For  a  man  cannot  aver 
that  to  be  appurtenant  which  the  law  will  not  suffer  to  be  appurtenant, 
though  usage  and  continuance  may  make  a  law  in  such  things  as  stand 
with  and  are  consonant  to  reason.  But  in  things  which  are  against  law  and 
reason,  there  usage  and  continuance  is  to  no  purpose,  as  here  the  pleading  or 
averment  that  the  land  has  been  always  appurtenant  to  the  messuage,  is  an 
averment  that  that  is  law  which  is  not  law.  And  all  the  four  justices  agreed 
unanimously  that  the  averment  or  pleading  that  the  land  has  been  always 
appurtenant  to  the  messuage  is  not  good  here,  and  also  they  agreed  that  land 
might  not  be  appurtenant  to  a  messuage  in  the  true  and  proper  definition 
of  an  appurtenance.  But  yet  all  of  them  (except  Brown,  Justice,  who  did 
not  speak  to  this  point)  agreed  that  the  word  (appertaining  to  the  messuage) 
shall  be  here  taken  in  the  sense  of  ufiually  occupied  with  the  messuage,  or 
lying  to  the  messuage,  for  when  appertaining  is  placed  with  the  said  other 
words,  it  cannot  have  its  proper  signification,  as  it  is  said  before,  and  there- 
fore it  shall  have  such  signification  as  was  intended  between  the  parties,  or 
else  it  shall  be  void,  which  it  must  not  be  by  any  means,  for  it  is  commonly 
used  in  the  sense  of  occupied  with,  or  lying  to.  ut  supra,  and  being  placed 
with  the  said  other  words  it  cannot  be  taken  in  any  other  sense,  nor  can  it 
have  any  other  meaning  than  is  agreeable  with  law,  and  forasmuch  as  it  is 
commonly  used  in  that  sense,  it  is  the  office  of  judges  to  take  and  expound 
the  words,  which  common  people  use  to  express  their  meaning,  according  to 
their  meaning,  and  therefore  it  shall  be  here  taken  not  according  to  the  true 
definition  of  it,  because  that  does  no  stand  with  the  matter,  but  in  such 
sense  as  the  party  intended  it.  As  where  a  lease  was  made  for  life,  and  after 
his  death  that  the  lands  redibunt  to  a  stranger,  it  was  taken  as  remanehunt, 
for  to  that  purpose  the  party  here  used  it,  and  therefore,  by  18  Ed.  3.  it 
shall  be  taken  by  way  of  a  remainder.  And  so  a  lease  for  life,  the  reversion 
to  a  stranger,  shall  be  taken  for  a  remainder,  caiisa  qua  supra.  And  many 
other  cases  were  put  where  a  word  shall  be  taken  out  of  its  natural  sense, 
according  to  the  sense  intended  by  the  party.  So  the  word  (appertaining) 
shall  be  here  taken  as  occupied,  used,  or  lying  with,  or  to  the  messuage,  and 
in  such  sense  the  averment  may  serve  to  declare  that  the  land  has  been 


160  ARCHER    V.    BENNETT  [CHAP.    IV 

always  occupied  with,  or  has  hiin  to  tlH>  messuage,  and  tlic  deniise  shall  serve 
to  convey  the  same  to  the  defendant,  and  so  the  bar  is  good,  nothwithstanding 
the  said  exception.  And  that  was  the  opinion  of  the  said  three  justices. 
And  afterwards  it  was  adjudged  accordingly,  as  appears  hereafter  by  the 
judgment.  And  in  this  argument  Brown  and  Saundeks,  Justices,  held,  that  a 
garden  and  curtilage  are  parcels  of  a  messuage:  and  Saunders  said  that  a 
dove-house,  a  mill,  and  shops  may  be  parcel  of  a  messuage,  and  shall  pass 
by  the  name  of  a  messuage"  (pp.  170,  171). 

In  Hanbury  v.  Jenkins,  L.  R.  T1901]  2  Ch.  401,  421,  422,  the  court  was  of 
opinion  that  one  incorporeal  hereditament  (a  way)  could  be  appurtenant  to 
another  incorporeal  hereditament  (a  fishery). 


SECT.    Il]  PERNAM     V.    WEED  161 


SECTION  II 

B  O  U  N  D  A  K  I  E  S  ^ 

A.  In  (jeneral. 

PERXAM  v.  WEED 
6  Mass.  131.     1809, 

In  a  writ  of  entry  sur  disseisin,  tLe  demandant  declared  on  his  own 
seisin,  and  on  a  disseisin  by  the  tenant.  The  tenant  claimed  under  a 
levy  of  an  execution  extended  upon  the  demandant's  land,  issued 
upon  a  judgment  recovered  against  him  by  one  Edmund  Sawyer. 

On  the  trial,  which  Avas  had  before  Sewall,  J.,  at  the  sittings 
here  after  the  last  November  Term,  upon  the  general  issue,  the  only 
question  in  dispute  was,  whether  the  land,  which  the  tenant  claimed 
to  hold,  was  included  within  the  bounds  of  the  land,  on  which  the 
execution  was  extended.  Upon  the  evidence,  the  judge  was  of 
opinion  with  the  tenant,  and  so  directed  the  jury;  but  they  found 
a  verdict  for  the  demandant.  The  tenant  thereupon  moved  for  a 
new  trial,  because  the  verdict  was  against  evidence. 

Erom  the  report  of  the  judge,  it  appears  that  the  land  on  which 
the  execution  of  Sawyer  was  extended,  was  bounded  south-westwardly 
l)y  Drury  Lane,  thirty-five  feet ;  north-eastwardly  by  the  land  of  San- 
born and  Collins,  ninety-nine  feet;  north-westwardly  by  other  land 
of  the  demandant,  about  thirty-fi,ve  feet,  by  a  line  parallel  to  Drury 
Lane;  and  south-westwardly  by  land  of  Fletchei-,  ninety-nine  feet; 
and  this  parcel  is  said  to  contain  thirteen  rods. 

From  a  plan  which  had  been  taken  under  an  order  of  the  court, 
the  line  on  Drury  Lane,  extending  from  the  land  of  Sanborn  and 
Collins  to  the  land  of  Fletcher,  appears  to  be  thirty-five  feet  three 
inches  and  a  half;  and  by  the  same  plan,  the  line  on  the  demandant's 
other  land  appears  to  be  forty-two  feet  nine  and  a  half  inches;  and 
this  last  extent  of  line  is  preserved  for  twenty-eight  feet  six  inches 
from  the  said  other  land  of  the  demandant  towards  Drury  Lane, 
where  the  length  of  the  line  is  thirty-seven  feet  three  and  a  half 
inches. 

The  demandant  insisted  that,  as  there  was  an  over-measure  of 
three  and  a  half  inches  on  one  side,  he  ought  to  recover  ou  that  side 
a  strip  of  that  width  the  Avhole  length  of  the  parcel  exteuchxl  upon; 
and  as,  on  the  other  side,  there  was  an  over-measure  of  five  feet  six 
inches,  extending  twenty-eight  six  inches,  in  the  form  of  a  parallelo- 
gram, he  ought  also  to  recover  that  parallelogram.    But  it  was  agreed 

1  The  topic  of  Boundaries  has  been  selected  as  that  which  furnishes 
most  opportunity  for  the  development  of  general   rules. 


162  PERNAM    V.    WEED  [CHAP.    IV 

that  Drury  Lane,  the  land  of  Sanborn  and  Collins  on  one  side,  and 
the  land  of  Fletcher  on  the  other  side,  are  all  fixed,  known  moiui- 
ments,  about  which  there  was  no  disputes;  and  that  there  was  no 
question  between  the  parties  as  to  the  other  land  of  the  demandant's 
parallel  to  Drury  Lane.  The  demandant  relied  not  only  on  the 
admeasurement,  but  also  on  the  contents,  which  gives  the  tenant 
thirteen  rods  and  two  fifths,  instead  of  thirteen  rods,  the  contents 
stated  in  the  extent  of  Sawyer's  execution. 

There  was  no  argument,  and  the  opinion  of  the  court  was  delivered 
to  the  following  effect  by 

Parsons,  C.  J.  Upon  considering  the  facts  in  this  case,  we  have 
no  doubt  as  to  the  motion.  It  must  prevail,  and  a  new  trial  be 
granted.  When  the  facts  were  agreed  by  the  parties,  or  proved  at 
the  trial,  the  result  was  a  mere  conclusion  of  law.  And  on  these 
points  the  law  has  been  long  settled. 

When  the  boundaries  of  land  are  fixed,  known,  and  unquestionable 
monuments,  although  neither  courses,  nor  distances,  nor  the  com- 
puted contents,  correspond,  the  monuments  must  govern.  With 
respect  to  courses,  from  errors  in  surveying  instruments,  variation 
of  the  needle,  and  other  causes,  different  surveyors  often  disagree. 
The  same  observations  apply  to  distances,  arising  from  the  inaccu- 
racy of  measures,  or  of  the  party  measuring;  and  computations  are 
often  erroneous.  But  fixed  monuments  remain :  about  them  there 
is  no  dispute  or  uncertainty;  and  Avhat  may  be  uncertain  must  be 
governed  by  monuments,  about  which  there  is  no  dispute. 

In  the  present  case,  Sanborn  and  Collins's  land  on  one  side,  and 
Fletcher's  on  the  other,  are  fixed  monuments.  The  land  is  bounded 
on  them,  and  must  extend  in  width  from  one  to  the  other.  If  the 
contents  had  proved  less  than  thirteen  rods,  yet  the  tenant  could 
claim  only  to  those  monuments;  and  where  the  contents  are  found 
to  be  greater,  he  still  shall  hold  to  the  same  monuments.  The  jury 
therefore  mistook  the  law;  and  the  cause  must  be  sent  to  another 
jury  to  correct  the  mistake.  New  trial  ordered.^ 

1  In  White  v.  Luning,  93  U.  S.  514,  524,  the  court  said,  "  It  is  true,  that,  as 
a  general  rule,  monuments,  natural  or  artificial,  referred  to  in  a  deed  con- 
trol, on  its  construction,  rather  than  courses  and  distances;  but  this  rule  is 
not  inflexible.  It  yields  whenever,  taking  all  the  particulars  of  the  deed  to- 
gether, it  would  be  absurd  to  apply  it.  For  instance,  if  the  rejection  of  a 
call  for  a  monument  would  reconcile  other  parts  of  the  description,  and  leave 
enough  to  identify  and  render  certain  the  land  which  the  sheriff  intended 
to  convey,  it  would  certainly  be  absurd  to  retain  the  false  call  and  thus 
defeat  the  conveyance."  See  Barrataria  Co.  v.  Louisiana  Co.,  146  La.  1001 ; 
Meyer  v.  Comegys,  147  La.  851. 

In  Kendall  v.  Green,  67  N.  H.  557,  it  was  held  that  the  measurement  of 
land  de'scribed  in  a  deed  as  beginning  a  certain  distance  from  a  house 
was  to  be  made  from  the  side  of  the  house  and  not  from  the  edge  of  the 
eaves.  Centre  Street  Church  v.  Machias  Hotel  Co.,  51  Me.  413,  accord. 
Millett  V.  Fowle,  8  Cush.  (Mass.)  150,  contra.  Compare  Meeks  v.  Willard, 
57  N.  J.  L.  22. 


SECT,    lij  LERNED    I'.    .MORRILL  163 

LEERED  V.  MOREILL 
2  N,  H.  197.     1820. 

This  was  a  writ  of  entry,  in  which  the  demandant  counted  upon 
his  own  seisin  within  twenty  years  and  upon  a  disseisin  by  the 
tenant. 

The  cause  was  tried  here  at  April  Term,  1819,  upon  the  general 
issue,  when  a  verdict  was  taken  for  the  demandant,  subject  to  the 
opinion  of  the  court,  upon  the  following  facts. 

The  tenant,  by  deed  dated  March  8,  1806,  conveyed  to  the  demand- 
ant a  tract  of  land  described  in  the  deed  as  follows:  "  being  the  west- 
erly part  of  lot  No.  2,  and  containing  80  acres,  beginning  at  the 
northwest  corner  on  Boscawen  line;  then  south  by  Lerned's  land  to 
Contoocook  river  to  a  poplar  tree,  thence  by  said  river  to  a  stake 
and  stones,  thence  northwardly  a  parallel  line  with  the  side  line  of 
said  lot  to  a  stake  and  stones  on  Boscawen  line,  thence  on  said  Bos- 
cawen line  to  the  bound  first  mentioned."  The  stakes  and  stones 
mentioned  in  the  deed  were  not  erected  at  the  time  of  making  the 
deed;  but  about  eighteen  months  afterAvards,  the  parties  Avent  upon 
the  premises  with  a  surveyor  and  chain-men  to  run  out  and  locate 
the  land,  and  they  erected  the  stakes  and  stones  at  the  north-east 
and  south-east  corners  of  the  premises.  The  parties  first  measured 
the  whole  lot,  divided  it  in  the  middle,  and  then  measured  off  ten 
acres  from  the  east  half  and  adjoining  the  west  half,  and  set  up 
stakes  and  stones  at  the  north-east  and  south-east  corners  of  the  land 
so  measured  off,  and  ran  the  line  from  one  stake  and  stones  to  the 
other,  and  set  up  stakes  and  stones  at  every  tally.  The  tenant  imme- 
diately cleared  his  land  up  to  the  line  and  built  a  fence  upon  it. 
The  demandant  also  built  a  board  fence  on  the  line,  and  the  parties 
occupied  and  improved  the  land  on  each  side  of  that  line  till  1817. 
It  was  proved  that  the  tenant  said  the  demandant  bought  ten  acres 
more  than  half  the  lot.  In  the  fall  of  1817,  the  defendant  surveyed 
the  lot,  and  finding  that  the  demandant  had  more  than  eighty  acres, 
removed  the  fence,  and  went  in  to  possession  of  all  but  eighty  acres, 
and  this  action  is  brought  to  recover  the  land,  of  which  tlie  tenant 
thus  took  possession. 

Per  Curiam.  The  question  presented  to  us  in  this  case  for  deci- 
sion, has  long  been  settled,  and  must  now  be  considered  as  entirely 
at  rest.  Where  land  has  been  conveyed  by  deed,  and  the  description 
of  the  land  in  the  deed  has  reference  to  monuments,  not  actually  in 
existence  at  the  time,  but  to  be  erected  by  the  parties  at  a  subsequent 
period:  when  the  parties  have  once  been  upon  the  land  and  deliber- 
ately erected  the  monuments,  they  will  be  as  much  bound  by  them,  as 
if  they  had  been  erected  before  the  deed  was  made.  In  this  case, 
there  was  a  reference  in  the  deed  to  monuments  not  actually  exist- 
ing at  the  time,  but  the  parties  soon  after  went  upon  the  land  with 


164  KNOWLES    V.    TOOTH AKER  [CHAP.   IV 

a  surveyor,  ran  it  out,  erected  monuments,  and  built  tlieir  fences 
accordingly;  and  this  is  not  all.  They  respectively  occupied  the 
land  according  to  the  line  thus  established,  for  nearly  ten  years. 
And  there  is  now  no  evidence  in  this  case  of  any  mistake  or  mis- 
apprehension in  establishing  the  line.  There  is  no  pretence  that  the 
tenant  could  lawfully  remove  monuments  thus  deliberately  erected 
and  so  long  acquiesced  in.  His  claim  to  the  demanded  premises,  for 
ought  that  appears  in  this  case,  is  without  any  foundation  what- 
ever, and  there  must  be  Judgment  for  the  demandant.^ 


KNOWLES  V.  TOOTHAKEE 
58  Maine  172.     1870. 

On  report.     Writ  of  entry.     Case  is  fully  stated  in  the  opinion. 

DicKERsoN,  J.  Writ  of  entry.  Both  parties  claim  title  through 
the  same  grantor,  Henry  Smith,  who,  in  the  first  instance,  conveyed 
"  parts  of  lots  numbered  9  and  10,  on  the  east  side  of  Sandy  Eiver," 
to  the  defendant.  After  reciting  the  other  boundaries,  the  descrip- 
tion in  the  deed  continues  as  follows :  "  thence  easterly  by  a  line 
parallel  with  the  north  line  of  lot  No.  9  to  the  county  road,"  the 
grantee  taking  the  land  north  of  the  line  now  in  dispute,  and  the 
grantor  retaining  the  land  south  of  it.  The  line  was  run  and  marked 
by  a  surveyor  immediately  after  the  conveyance,  and  the  parties 
then  built  a  fence  on  it,  intending  it  for  a  division  fence.  Smith 
occupying  to  the  fence  on  the  south,  and  the  defendant  on  the  north 
side  of  the  fence,  for  some  six  years,  when  Smith  conveyed  his  re- 
maining parcel  to  the  plaintiff's  grantor,  describing  the  line  in  con- 
troversy as  follows,  "  to  land  supposed  to  be  owned  by  George  Tooth- 
aker,  thence  easterly  on  said  Toothaker's  south  line  to  the  county 
road."  About  eight  months  afterwards,  the  grantee  conveyed  the 
last  named  premises  to  the  plaintiff,  describing  it  as  "  the  same  she 
purchased  of  Henry  Smith."  The  plaintiff  claims  to  hold  to  the 
line  described  as  running  "  easterly  by  a  line  parallel  with  the 
north  line  of  said  lot  No.  9  to  the  county  road,"  in  Smith's  deed  to 
the  defendant,  which  is  several  rods  northerly  of  the  fence,  and  the 
defendant  claims  to  hold  to  the  divisional  line  made  by  the  fence; 
and  the  question  is,  which  is  the  true  line  between  the  parties? 

The  presiding  judge  ruled  that  the  words,  "  on  said  Toothaker's 
south  line,"  would  limit  the  plaintiff's  land  to  the  line  established  by 
Toothaker  and  Smith,  on  which  the  division  fence  was  built,  and 
that  she  could  not  hold  beyond  this  line,  even  if  she  could  satisfy 
the  jury  that  it  did  not  conform  to  the  original  lot  line;  thereupon 
the  parties  agreed  to  submit  the  question  to  the  law  court,  judgment 

1  Mistake  in  locating  boundary  line,  see  Kinne  v.  Waggoiwr,  197  Pac. 
(Kan.)   195;  Ouzts  v.  McKnight,  114  S.  C.  303. 


SECT.    II ]  KNOWLES    V.    TOOTHAKER  165 

to  be  rendered  for  the  defendant  if  the  rulijig  is  correct;  if  not,  the 
action  is  to  stand  for  trial. 

But  for  the  acts  of  the  parties  in  interest,  in  running,  marking, 
and  locating  the  line,  building  a  fence  upon  it  immediately  after 
the  conveyance,  and  occupying  up  to  it  down  to  the  commencement 
of  this  suit,  the  line  on  the  course  described  in  the  deed,  if  it  could 
be  ascertained,  would  be  the  line  between  the  two  parcels.  Did 
these  acts  fix  and  establish  the  divisional  line  as  the  true  line? 

It  was  early  held  that  where  a  deed  refers  to  a  monument,  not 
actually  existing  at  the  time,  but  which  is  subsequently  placed  there 
by  the  parties  for  the  purpose  of  conforming  to  the  deed,  the  monu- 
ment so  placed  will  govern  the  extent  of  the  land,  though  it  does 
not  entirely  coincide  with  the  line  described  in  the  deed.  Makepeace 
V.  Bancroft,  12  Mass.  469  (1815);  Kennebec  Purchase  v.  Tiffany,  1 
Greenl.  211  (1821);  Lerned  v.  Morrill,  2  K  H.  197  (1820). 

Again  it  was  held  in  Moody  v.  Nichols,  16  Maine,  23  (1839),  that 
when  jDarties  agree  upon  a  boundary  line,  and  hold  possession  in 
accordance  with  it,  so  as  to  give  title  by  disseisin,  such  boundary 
will  not  be  disturbed,  although  found  to  have  been  erroneously 
established.  In  that  case  the  call  in  the  deed  was  "  a  line  extended 
west,  so  as  to  include  "  a  certain  number  of  acres,  the  boundaries 
upon  the  other  three  sides  having  been  accurately  described.  The 
parties  to  the  deed  agreed  upon  and  marked  that  line,  erected  a 
fence  upon  it,  and  held  possession  according  to  it  for  thirty  years. 

The  same  doctrine  was  held  by  the  Supreme  Court  of  the  United 
States,  in  giving  construction  to  a  line  described  in  the  deed  as  "  run- 
ning a  due  east  course  "  from  a  given  point.  Missouri  v.  Torva,  6 
How.  660. 

So  the  court  in  Massachusetts,  in  giving  effect  to  a  deed,  describ- 
ing a  line  as  "  running  a  due  west  course  "  from  a  given  point,  held 
that  the  line  located,  laid  out,  assented  to,  and  adopted  by  the  parties 
was  the  true  line,  though  it  varied  several  degrees  from  "  a  due 
west  course."    Kellogg  v.  Smith,  1  Cush.  382  (1851). 

In  Emery  v.  Fowler,  38  Maine,  102  (1854),  the  call  in  the  deed 
was  a  line  from  a  given  point,  "  on  such  a  course  ...  as  shall  con- 
tain exactly  one  and  a  half  acres."  The  lots  to  be  conveyed  were 
located  upon  the  face  of  the  earth  by  fixed  monuments,  erected  by 
referees  mutually  agreed  upon;  and  the  parties  to  the  several  con- 
veyances assented  to  and  adopted  the  location  before  the  deeds  were 
given.  Deeds  intended  to  conform  to  the  location  thus  made  Avere 
then  executed  by  the  parties.  The  respective  grantees  entered  under 
the  deeds,  built  fences,  and  occupied  in  conformity  with  the  location 
for  fifteen  years,  Avhen,  it  being  found  that  more  land  was  contained 
within  the  limits  of  the  actual  location  upon  the  face  of  the  earth 
than  was  embraced  within  the  calls  of  the  deed,  a  dispute  arose. 
The  court  held  that  the  monuments  thus  erected  before  the  deed 
was  given,  must  control,  thus  extending  the  rule  adopted  in  Moody 


166  KNOWLES    V.    TOOTH AKER  [CHAP.   IV 

V.  Nichols  to  cases  where  the  possession  had  not  been  long  enough 
to  give  title  by  disseisin.  That  decision  also  makes  the  rule  of  con- 
struction the  same,  whether  the  location  is  first  marked  and  estab- 
lished, and  the  deed  is  subsequently  executed,^  intended  to  conform 
to  such  location,  or  whether  monuments,  not  existing  at  the  time, 
but  referred  to  in  the  deed,  are  subsequently  erected  by  the  parties 
with  like  intention. 

In  construing  a  deed,  the  first  inquiry  is.  What  Avas  the  intention 
of  the  parties?  This  is  to  be  ascertained  primarily  from  the  lan- 
guage of  the  deed.  If  the  description  is  so  clear,  unambiguous,  and 
certain,  that  it  may  be  readily  traced  upon  the  face  of  the  earth 
from  the  monuments  mentioned,  it  must  govern ;  but  when,  from  the 
courses,  distances,  or  quantity  of  land  given  in  a  deed,  it  is 
uncertain  precisely  Avhere  a  particular  line  is  located  upon  the  face 
of  the  earth,  the  contemporaneous  acts  of  the  parties  in  anticipation 
of  a  deed  to  be  made  in  conformity  therewith,  or  in  delineating  and 
establishing  a  line  given  in  a  deed,  are  admissible  to  show  what 
land  was  intended  to  be  embraced  in  the  deed.  It  is  the  tendency 
of  recent  decisions  to  give  increased  weight  to  such  acts,  both  on  the 
ground,  that  they  are  the  direct  index  of  the  intention  of  the  parties 
in  such  cases,  and,  on  the  score  of  public  policy,  to  quiet  titles.  The 
ordinary  variation  of  the  compass,  local  attraction,  imperfection  of 
the  instruments  used  in  surA'eying,  or  unskillfulness  in  their  use, 
inequalities  of  surface,  and  various  other  causes,  oftentimes  render  it 
impracticable  to  trace  the  course  in  a  deed  -with  entire  accuracy. 
If  to  these  considerations  we  add,  what  is  too  often  apparent,  the 
ignorance  or  carelessness  of  the  scrivener  in  expressing  the  meaning 
of  the  parties,  we  shall  find  that  the  acts  of  the  parties  in  running, 
marking,  and  locating  a  line,  building  a  fence  upon  it,  and  occupy- 
ing up  to  it,  are  more  likely  to  disclose  their  intention  as  to  where  the 
line  was  intended  to  be,  when  the  deed  was  given,  than  the  course 
put  down  on  paper,  if  there  is  a  conflict  betAveen  the  tAvo. 

Hence  the  rule  of  law  now  is,  that  Avhen,  in  a  deed  or  grant,  a  line 
is  described  as  running  from  a  given  point,  and  this  line  is  after- 
wards run  out  and  located,  and  marked  upon  the  face  of  the  earth 
by  the  parties  in  interest,  and  is  afterwards  recognized  and  acted  on 
as  the  true  line,  the  line  thus  actually  marked  out  and  acted  on  is 
conclusive,  and  must  be  adhered  to,  though  it  may  be  subsequently 
ascertained  that  it  varies  from  the  course  given  in  the  deed  or  grant. 

The  acts  of  the  defendant  and  Smith,  through  AA-hom  the  plaintiff 
claims,  in  surveying  and  marking  the  line  in  dispute  upon  the  face  of 
the  earth  by  stakes  and  stones  and  spotted  trees,  building  a  fence 
thereon,  intending  it  to  be  the  line  betAA-een  them,  and  occupying  up 
to  it,  make  and  establish  such  line  as  the  divisional  line  betAveen  the 
two  lots. 

1  Compare  McKinney  v.  Doane,  155  Mo.  287;   Ncgbaiier  v.  Smith,  44 
N.  J.  L.  672. 


SECT.    II ]  KNOWLES    V.    TOOTH AKER  167 

The  ruling  of  the  presiding  judge  was  in  accordance  with  this  con- 
struction of  the  deeds,  and  there  must  be 

Judgment  for  defendant.^ 

Appleton,  C.  J.,  Cutting,  Kent,  Barrows,  and  Danforth,  JJ., 
concurred. 

1  Compare  Reynolds  v.  Boston  Rubber  Co.,  160  Mass.  240;  Allison  v. 
Kcnion,  163  N.  C.  582;  Talbot  v.  Smith,  56  Oreg.  117;  Crandall  v.  Mary,  67 
Oreg.  18;  Savill  Bros.  v.  BetchcU,  [1902 J  2  Ch.  523. 

An  agreement  to  settle  an  honestly  disputed  boundary  is  valid  between 
the  parties.  Many  of  the  decisions  state  that  the  agreement  must  be 
acted  on.  Jenkins  v.  Trager,  40  F.  R.  726;  Payne  v.  McBridc,  96  Ark.  168; 
Malone  v.  Mobbs,  102  Ark.  542;  Grants  Pass  Co.  v.  Brown,  168  Cal.  456; 
Watrous  v.  Morrison,  33  Fla.  261;  Farr  v.  Wooljolk,  150  Ga.  289;  Adams  v. 
Betz,  167  Ind.  161;  St.  Bcde  College  v.  Wejer,  168  111.  324;  Purtle  v.  Bell, 
225  111.  523;  Warden  v.  Addington,  131  Ky.  296;  Garvin  v.  Threlkeld,  173 
Ky.  262;  Turner  v.  Boiocns,  180  Ky.  755;  Jones  v.  Pashby,  67  Mich.  459; 
Pittsburgh  Iron  Co.  v.  Lake  Superior  Iron  Co..  118  Mich.  109;  Archer  v. 
Helm,  69  Miss.  730;  Turner  v.  Baker,  64  Mo.  218;  Atchison  v.  Pease,  96 
Mo.  566;  Barnes  v.  Allison,  166  Mo.  96;  Hitchcock  v.  Libby,  70  N.  H.  399; 
Wfjod  V.  Bapp.  169  N.  W.  (N.  D.)  518;  Bobo  v.  Richmond,  25  Ohio  St.  115; 
Hagey  v.  Detweilcr,  35  Pa.  409;  Cooper  v.  Austin,  58  Tex.  494;  Ham  v. 
Smith,  79  Tex.  310;  Levy  v.  .Vac/c/ox,  81  Tex.  210;  Gwynn  v.  Schwartz,  32 
W.  Va.  487;   Le  Comte  v.  Freshwater,  56  W.  Va.  336. 

Contra,  Liverpool  Wharf  Co.  v.  Prescott,  4  All.  (Mass.)  494. 

Compare  Raymond  v.  A^ash,  57  Conn.  447;  Fredericksen  v.  Bierent.  154 
Iowa  34;  Hooper  v.  Herald,  154  Mich.  529;  Stone  v.  Clark,  1  Met.  (Mass.) 
378;  Jackson  v.  Dysling,  1  (Taines  (N.  Y.)  198;  Messer  v.  Oestreich,  52  Wis. 
684. 

For  the  effect  of  such  agreement  on  purchasers  from  the  original  parties 
thereto,  see  Idaho  Land  Co.  v.  Parson.-^,  3  Idaho  450;  Osteen  v.  Wynyi,  131 
Ga.  209;  Keen  v.  Osborne,  185  Ky.  647;  Iverson  v.  /Su««»,  169  Mass.  582; 
Tanner  v.  Stratton,  44  Utah  253;  Tumrr  v.  Creech,  58  Wash  439. 

In  McKinney  v.  Doane,  155  Mo.  287  (1899),  a  tract  of  land  had  been 
surveyed  and  stakes  set  at  the  corners  of  the  lots.  A  plat  of  the  tract  was 
recorded  and  lots  were  sold  by  reference  to  this  recorded  plat.  The  plat 
contained  no  reference  to  the  stakes.  The  owner  of  the  tract,  A,  sold  two 
lots  to  B  and  subsequently  sold  an  adjoining  lot  to  C.  The  court  held  that 
if,  at  the  time  of  the  sale  to  B,  A  pointed  out  the  stakes  to  B  and  B  took 
possession  of  the  lots,  made  improvements  and  built  fences  thereon  in  ac- 
cordance with  the  stakes,  then,  as  between  A  and  B  and  any  subsequent 
grantees  having  knowledge  of  the  facts,  B  became  the  owner  of  the  lots  as 
bounded  by  the  stakes  even  though  the  lots  as  so  bounded  may  not  have 
agreed  with  the  lots  as  .shown  on  the  recorded  plat;  but  that  subsequent' 
grantees  without  knowledge  of  the  facts  were  not  affected.  "  One  who  pur- 
chases a  surveyed  lot,  or  tract  of  land,  without  notice  of  the  actual  boundary, 
or  corners,  has  a  right  to  rely  upon  what  appears  from  the  original  survey, 
or  plat  thereof,  and  is  not  bound  by  monuments  which  do  not  appear  there- 
from to  have  been  placed  upon  the  land." 

On  the  effect  of  acquiescence  of  adjoining  proprietors  in  the  location  of 
a  boundary  line,  see  Long  v  Cumming.^.  156  Ala.  577;  Price  v.  De  Reyes, 
161  Cal.  484;  Lowndes  v.  Wicks,  69  Conn.  15;  Clayton  v.  Feig,  179  111.  534; 
Keller  v.  Harrison,  139  Iowa  383:  Dwigbt  v.  Des  Moines.  174  Iowa  178; 
Brummell  v.  Hams,  148  Mo.  430;  Martin  v.  Hays.  228  S.  W.  (Mo.)  741; 
Den  d.  Haring  v.  Van  Houton,  22  N.  J.  I..  61  ;   Dibble  v.  Roger.<i,  13  Wend. 


168 


HALL    V.    EATON 


[chap.   IV 


HALL  V.  EATON  and  Others 
139  Mass.  217.     1885. 

Wkit  of  entry  to  recover  a  lot  of  land  in  the  city  of  Worcester. 
Plea,  Nul  disseisin.  Trial  in  the  Superior  Court,  without  a  jury, 
before  Blodgett,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as 
follows :  — 

The  land  in  dispute  Avas  a  triangular  tract  on  the  northerly  side 
of  Dix  Street,  marked  on  a  plan  used  at  the  trial,  a  copy  of  which  is 
printed  in  the  margin,*   as   "Demanded  Premises."     It   appeared 


46  ft. 


60  ft. 


:S:    Tenants'   "^i 
9  •  Xot.      M  I  3 

"    "I 


135  ft. 


60.5  ft. 


Dix  Street. 


45  ft. 


that  all  the  land  lying  next  northerly  of  Dix  Street  and  between 
Wachusett  Street  on  the  east  and  Goulding  Street  on  the  west  was 
formerly  owned  by  Henry  Goulding,  and  was  divided  into  lots  and 
sold  by  his  executors.     The  tenants'  lot  was  at  the  corner  of  Dix 


(N.  Y.)  536;  Hanstein  v.  Farrell,  149  N.  C.  240;  O'Donnell  v.  Penney,  17 
R.  I.  164;  Young  v.  Hyland.  37  Utah  229;  Pickett  v.  Nelson,  71  Wis.  542. 
Compare  Ulman  v.  Clark,  100  F.  R.  180;  Woodlawn  v.  Hodson,  28  Idaho  45; 
Shad  V.  Sharp,  95  Mo.  573;  Baldwin  v.  Broum,  16  N.  Y.  359. 

On.  the  effect  of  estoppel  of  a  proprietor  to  dispute  a  boundary  line  which 
he  Ms  recognized,  see  Cheeney  v.  Nebraska  Stone  Co.,  41  F.  R.  740;  Steidl 
V.  liink,  246  111.  345;  Peterson  v.  Sohl,  141  Ind.  466;  Ross  v.  Ross,  95  Iowa 
604;  Wilson  v.  Beck,  160  Iowa,  276;  Titiis  v.  Morse,  40  Me.  348;  Brewer  v. 
Boston  and  Worcester  Rd.  Co.,  5  Met.  (Mass.)  478;  Liverpool  Wharf  v. 
Prescott,  4  All.  (Mass.)  22.  7  All.  (Mass.)  494;  Iverson  v.  Swan,  169  Mass. 
582;  Joyce  v.  Williams,  26' Mich.  332;  Majors  v.  Rice,  57  Mo.  384;  Fitch  v. 
Walsh,  94  Neb.  32;  Trustees  v.  Smith,  118  N.  Y.  634;  Galbraith  v.  Lunsjord, 
87  Tenn.  89. 

If  the  real  boundary  is  known,  an  oral  agreement  to  substitute  a  new  line 
has  been  held  mvalid.  Sharp  v.  Blankcnship,  67  Cal.  441;  Nathan  v.  Diers- 
sen,  134  Cal.  282;  Mann  v.  Mann,  152  Cal.  23;  Miller  v.  McGlaun,  63  Ga. 
435;  Olin  v.  Henderson,  120  Mich.  149;  Alt  v.  Butz,  81  N.  J.  L.  156;  Vos- 
burgh  v.  Teator,  32  N.  Y.  561;  Lennox  v.  Hendricks,  11  Oreg.  33;  Nichol 
V.  Lytle,  4  Yerg.  (Tenn.)  456;  LewaUen  v.  Overton,  9  Humph.  (Tenn.)  76; 
George  v.  Collins,  72  W.  Va.  25;  Hartung  v.  Wittc,  59  Wis.  285.  Compare 
Lems  V.  Ogram,  149  Cal.  505. 


SECT.    II]  HALL    V.    EATON  1G9 

Street  aud  Wachusett  Street,  and  the  demandant's  lot  was  part  of 
the  lot  next  westerly,  and  the  question  was  as  to  the  westerly  bound- 
ary of  the  tenants'  lot  and  the  easterly  boundary  of  the  demandant's 
lot,  under  the  following  deeds :  — 

On  February  20,  1869,  Goulding's  executors  conveyed  the  corner 
lot  to  Blackmer  and  Kelley  (under  whom  the  tenants  derive  their 
title),  by  the  following  description:  "A  certain  lot  of  land  situated 
in  the  city  of  Worcester,  on  the  westerly  side  of  Wachusett  Street  and 
northerly  side  of  Dix  Street,  bounded  and  described  as  follows,  to  wit  : 
beginning  at  the  southeasterly  corner  of  the  lot  conveyed,  and  at 
the  intersection  of  said  streets;  thence  running  northerly  by  Wachu- 
sett Street  one  hundred  and  thirty-four  feet,  to  land  of  the  heirs 
of  Henry  Goulding;  thence  running  westerly  by  land  of  the  heirs  of 
said  Goulding,  sixty  feet;  thence  running  southerly  by  laud 
of  said  heirs  at  right  angles  to  said  Dix  Street  one  hundred  and 
tw^enty-five  feet  to  Dix  Street;  thence  running  easterly  by  Dix  Street 
sixty-one  feet  more  or  less  to  the  first-mentioned  bound,  containing 
7,770  feet  more  or  less." 

On  October  8,  1869,  said  executors  conveyed  the  residue  of  the 
land  between  the  tenants'  lot  and  Goulding  Street  to  one  King,  by  a 
deed  which  contained  the  following  description :  "  Lot  of  land  on 
the  northerly  side  of  Dix  Street,  bounded  as  follows :  beginning  at 
the  southeasterly  corner  of  the  lot  at  a  corner  of  land  of  Kelley  and 
Blackmer  and  running  westerly  on  Dix  Street  one  hundred  and 
eighty  feet  to  a  new  street  about  to  be  made;  thence  turning  and  run- 
ning northerly  on  said  new  street  one  hundred  and  twelve  and  a  half 
feet,  to  land  belonging  to  the  estate  of  the  late  Henry  Goulding; 
thence  turning  and  running  easterly  on  the  said  Goulding  estate  one 
hundred  and  eighty  feet,  to  land  of  Kelley  and  Blackmer;  thence 
turning  and  running  southerly  on  land  of  said  Kelley  and  Blackmer 
one  hundred  and  twenty-five  feet,  to  the  place  of  beginning  on  said 
Dix  Street." 

It  was  agreed  that  the  new  street  referred  to  was  Goulding  Street, 
and  the  corner  of  Goulding  Street  and  Dix  Street  was  a  known  and 
fixed  bound. 

On  May  8,  1871,  King  conveyed  to  the  demandant  a  part  of  said 
lot,  forty-five  feet  wide  on  Dix  Street,  bounded  as  follows :  "  begin- 
ning at  the  southeasterly  corner  thereof  at  corner  of  land  of  Kelley 
and  Blackmer,  and  at  a  point  one  hundred  and  eighty  feet  distant 
from  the  easterly  line  of  Goulding  Street,  thence  northerly  on  land 
of  Kelley  and  Blackmer  one  hundred  and  twenty-five  feet,  to  land 
of  the  estate  of  Henry  Goulding;  thence  westerly  on  said  land  of 
Goulding  forty-five  feet;  thence  southerly  and  parallel  with  the 
first-described  line  one  hundred  and  twenty-five  feet  more  or  less,  to 
said  Dix  Street;  thence  easterly  on  Dix  Street  forty-five  feet,  to  the 
place  of  beginning." 

The  corner  of  Dix  Street  and  Wachusett  Street  was  a  known  and 


170  HALL    V.    EATON  [CHAP.   IV 

fixed  bound,  and  the  northerly  line  of  Dix  Street  was  a  known  and 
fixed  line. 

If  the  third  line  described  in  the  deed  of  the  executors  to  Blackmer 
and  Kelley  is  drawn  at  right  angles  to  Dix  Street,  it  strikes  a  point 
on  Dix  Street  eighty  feet  and  fifty-two  one-hundredths  of  a  foot  from 
Wachusett  Street,  and  one  hundred  and  sixty-one  feet  and  ninety- 
four  one-hundredths  of  a  foot  from  Goulding  Street.  In  such  case, 
the  tenants'  line  on  Dix  Street  is  eighty  feet  and  fifty-two  one-hun- 
dredths of  a  foot  in  length,  and  is  shown  by  the  westerly  dotted  line, 
and  their  lot  contains  9,101  square  feet. 

If  the  third  line  described  in  said  deed  to  Blackmer  and  Kelly  is 
drawn  so  as  to  strike  Dix  Street  one  hundred  and  eighty  feet  easterly 
from  Goulding  Street,  the  tenants'  line  on  Dix  Street  is  sixty  feet 
and  a  half  in  length,  and  their  lot  contains  exactly  7,770  square 
feet. 

The  demandant  offered  evidence  tending  to  show  that,  before  the 
several  lots  were  sold  by  the  executors  of  Henry  Goulding,  they  pre- 
pared a  plan  of  them,  which  was  produced  at  the  trial;  and  it  was 
testified  by  one  of  the  executors,  that  the  lots  were  sold  by  said  plan, 
but  there  were  no  monuments  at  the  corners  of  the  lots  when  the 
deeds  were  given,  and  there  was  no  evidence  that  Blackmer  and 
Kelley  saw  the  plan  before  they  took  their  deed.  Said  plan  showed 
the  tenants'  lot  to  have  a  line  of  only  sixty  feet  and  a  half  on  Dix 
Street,  and  showed  that  the  westerly  line  did  not  make  a  right  angle 
with  Dix  Street. 

The  demandant  also  offered  evidence  tending  to  show  that,  in  the 
year  1876,  he  erected  a  fence  between  his  said  lot  and  the  tenants'  lot 
(Kelley,  who  had  bought  Blackmer's  interest,  then  being  the  OAvner 
of  the  tenants'  lot),  and  by  Kelley's  consent  it  was  placed  on  the 
line  as  claimed  by  the  demandant,  and  remained  there  several  years, 
and  until  removed  by  the  tenants  a  short  time  before  this  suit  was 
brought. 

The  demandant  asked  the  judge  to  rule  that  it  was  a  question  of 
fact,  on  all  the  evidence,  whether  the  tenants'  westerly  line  was  to 
be  drawn  at  right  angles  to  Dix  Street,  and  asked  a  finding  in  fact 
that  it  was  to  be  drawn  at  an  angle  to  said  Dix  Street,  so  as  to  strike 
said  street  sixty  and  a  half  feet  from  Wachusett  Street.  The  judge 
ruled,  as  matter  of  law,  that  the  said  line  was  to  be  drawn  at  a  right 
angle  to  Dix  Street,  without  regard  to  the  evidence  outside  of  the 
deeds ;  and  found  for  the  tenants.    The  demandant  alleged  exceptions. 

W.  Allen,  J.  The  courses  of  the  lines  on  Wachusett  Street  and 
Dix  Street  are  fixed  on  the  land,  and  fix  the  angle  contained  by  them. 
There  is  nothing  on  the  land  to  fix  the  course  of  the  second  or  of  the 
third  line,  for  it  does  not  appear  that  the  line  of  the  land  of  the  heirs 
of  Henry  Goulding  mentioned  is  fixed.  The  description  in  the  deed 
gives  the  length  of  the  first,  second,  and  third  lines,  which  there  is 
nothing  to  control,  and  the  angle  contained  by  the  third  and  fourth 


SECT.    II  ]  HALL    V.    EATON  171 

lines.  There  is  no  difficulty  in  locating  this  description  upon  the 
land,  and  it  makes  the  length  of  the  fourth  line  eighty  feet  and  fifty- 
two  one-hundredths  of  a  foot,  and  the  contents  of  the  lot  9,101 
square  feet.  The  description  in  the  deed  gives  the  length  of  the 
fourth  line  as  "  sixty-one  feet  more  or  less,"  and  the  contents  of  the 
lot  as  "  7,770  feet  more  or  less."  This  discrepancy  of  one  third  in 
length  of  the  front  line  of  the  lot,  and  one  fifth  in  its  contents, 
could  not  have  been  intended,  although  the  length  and  dimensions  are 
only  approximately  given,  and  it  is  obvious  that  there  is  a  mistake, 
either  in  the  angle  given,  or  in  the  length  of  the  fourth  line. 

We  do  not  regard  the  statement  of  the  quantity  of  the  land  as 
very  material.  It  is  the  computation  of  the  contents  of  the  figure 
described  in  the  deed,  but  which  cannot  be  produced  on  the  land. 
The  fact  that  to  give  exactly  the  quantity  of  land  mentioned  when 
the  other  particulars  of  the  description  are  applied  to  the  land,  the 
third  line  must  intersect  the  fourth  at  an  obtuse  angle,  and  the  fourth 
line  must  be  sixty  feet  and  a  half  in  length,  goes  to  shoAV,  what  is 
otherwise  sufficiently  apparent,  that  no  such  discrepancy  in  the 
length  was  intended.  There  was  a  mistake  either  in  the  angle  given 
or  in  the  length  of  the  fourth  line ;  they  cannot  both  be  applied  to  the 
land,  though  either  of  them  may  be,  and  the  question  is  which  must 
be  rejected. 

The  question  to  be  determined  is  the  intention  shown  in  the  lan- 
guage of  the  deed,  in  the  light  of  the  situation  of  the  land  and  the 
circumstances  of  the  transaction,  and  sometimes  with  the  aid  of 
declarations  and  conduct  of  the  parties  in  relation  to  the  subject- 
matter.  The  rule  that  monuments,  in  a  description  in  a  deed,  con- 
trol courses  and  distances,  is  founded  on  the  consideration  that  that 
construction  is  more  likely  to  express  the  intention  of  the  parties. 
The  intention  to  run  a  line  to  a  fixed  object  is  more  obvious,  and  the 
parties  are  less  likely  to  be  mistaken  in  regard  to  it  than  in  running 
a  given  distance  or  by  a  given  course.  But,  where  the  circumstances 
show  that  the  controlling  intention  was  otherwise,  the  rule  is  not 
applied.  Davis  v.  Rainsford,  17  Mass.  207.  Parl'S  v.  Loomis,  6 
Gray,  467.  Chapman  v.  Murdoch,  9  Gray,  156.  So  far  as  the  ques- 
tion is  as  to  the  relative  eft'ect  to  be  given  to  a  course  and  a  distance, 
neither  has  in  itself  any  advantage  over  the  other  as  showing  a 
governing  intent.  Whether  the  one  in  a  given  case  shall  outweigh 
the  other,  as  showing  the  intention  of  the  parties,  must  depend 
upon  the  circumstances  existing  at  the  time. 

The  angle  formed  by  Dix  Street  and  Wachusett  Street  is  an  acute 
angle;  the  lot  was  a  corner  lot,  the  front  on  Dix  Street.  In  laying 
it  out,  it  would  be  natural  either  to  have  the  third  line  in  the  descrip- 
tion parallel  to  Wachusett  Street,  or  at  a  right  angle  with  Dix  Street. 
The  latter  is  for  the  advantage  of  the  purchasers.  The  deed  shows 
that  the  parties  had  that,  and  not  the  other,  in  mind.  Not  only  is 
the  third  line  not  said  to  be  parallel  with  Wachusett  Street,  but  it 


172  HALL    V.    EATON  [CHAP.   IV 

appears  that  it  was  not  intended  to  be.  The  parties  understood 
that  the  angle  at  the  corner  of  the  streets  was  an  acute  angle,  and 
that  making  the  other  angle  on  Dix  Street  a  right  angle  would  re- 
quire the  line  on  that  street  to  be  longor  than  the  rear  line,  and  they 
said  that  the  angle  should  be  a  right  angle,  and  therefore  that  the 
line  should  be  longer.  It  was  not  merely  giving  a  course  to  the  third 
line,  but  it  was  expressly  fixing  the  shape  of  the  lot.  The  length 
of  the  fourth  line  was  left  indefinite,  and  to  be  determined  by  the 
angle  Avhich  was  fixed.  It  is  true  that  the  given  angle  requires  a 
longer  line  than  was  supposed;  but  the  angle  and  the  shape  of  the 
lot,  and  not  the  length  of  the  line,  appear  to  have  been  the  controlling 
considerations.     See  Nohle  v.  Googins,  99  Mass.  231. 

It  is  contended  by  the  plaintiff,  that  it  is  a  case  of  latent  ambiguity, 
which  may  be  explained  by  parol  evidence.  If  the  difference  were 
between  a  given  course  of  the  third  line  and  measurement  of  the 
fourth,  it  might  present  such  a  case,  but  neither  is  given.  The  course 
of  the  third  line  was  not  run,  but  it  was  to  intersect  Dix  Street  at  a 
right  angle;  the  fourth  line  was  not  measured,  but  its  length  was 
estimated,  and  apparently  estimated  as  the  distance  between  the 
point  where  the  third  line  must  meet  Dix  Street  to  form  a  right  angle 
with  it  and  the  first  corner.  A  mistake  was  made  in  the  estimate  of 
the  distance.  It  would  seem  that  the  angle  was  so  material  a  particu- 
lar in  the  description  of  the  lot,  that  the  expressed  intention  in  re- 
gard to  it  could  not  be  made  doubtful  by  a  mistake  in  the  estimate  of 
the  length  of  the  fourth  line,  which  was  determined  by  it;  but  it  is 
not  necessary  to  decide  this.  As  the  case  stood  at  the  trial,  and  upon 
the  evidence  offered,  the  court  properly  ruled  that,  as  matter  of 
law,  the  third  line  was  to  be  at  a  right  angle  with  Dix  Street,  with- 
out regard  to  the  evidence  outside  the  deed. 

The  plaintiff  relied  upon  evidence  that  the  executors  of  Goulding, 
before  the  lot  was  sold,  made  a  plan  of  this  and  other  lots,  by  which 
it  appeared  that  the  fourth  line  was  sixty  feet  and  a  half  in  length, 
and  that  the  angle  formed  by  the  third  line  and  Dix  Street  was  an 
obtuse  angle.  This  plan  is  not  referred  to  in  the  deed,  and  was  not 
seen  by  the  purchasers.  The  only  effect  of  this  evidence  would  be  to 
show  that  the  grantors  knew  that  the  lot  described  in  the  deed  did 
not  correspond  with  the  one  on  the  plan,  and  did  not  inform  the 
grantees. 

Eight  months  after  the  conveyance  to  Blackmer  and  Kelley,  the 
executors  conveyed  to  one  King  the  adjoining  lot  on  Dix  Street,  ex- 
tending westerly  to  a  way  to  be  laid  out,  called  Goulding  Street, 
bounding  easteidy  on  the  land  of  Blackmer  and  Kelley  and  the  line 
on  Dix  Street,  and  the  rear  lines  being  each  one  hundred  and  eighty 
feet  in  length.  This  evidence  may  tend  to  show  that  the  executors 
intended  that  the  third  line  of  the  Blackmer  and  Kelley  lot  should 
be  parallel  with  Goulding  Street,  but  such  intention  was  not  knoAvn 
to  Blackmer  and  Kelley,  and  was  not  expressed  or  indicated  in  the 


SECT.    II  j  STARR    V.    CHILD  173 

deed  to  them.  The  demandant  also  relied  upon  evidence  that  King 
afterwards  conveyed  to  the  demandant  a  lot  adjoining  Blackmer  and 
Kelley,  described  as  beginning  at  a  corner  of  their  land  on  Dix  Street 
one  hundred  and  eighty  feet  from  Goulding  Street,  and  that  several 
years  after,  and  seven  years  after  the  conveyance  to  Blackmer  and 
Kelley,  and  after  Kelley  had  acquired  Blackmer's  interest,  the  de- 
mandant put  up  a  fence  between  his  lot  and  Kelley's,  and,  Avith 
Kelley's  consent,  put  it  on  the  line  now  claimed  by  the  demandant, 
where  it  remained  for  several  years. 

We  do  not  see  that  any  of  this  evidence  is  competent  to  control  the 
construction  indicated  by  the  deed  itself.  It  is  not  sufficient  to 
show  a  practical  construction  of  the  deed  by  the  parties  to  it,  nor 
an  admission  by  the  tenants'  grantor  which  can  bind  the  tenants, 
nor  a  mutual  agreement  as  to  the  boundary,  and  occupation  accord- 
ingly. See  Liverpool  Wharf  v.  Prescott,  7  Allen,  494;  Miles  v. 
Barrows,  122  Mass.  579;  Love  joy  v.  Lovett,  124  Mass.  270.  Whether 
evidence  of  the  construction  of  the  deed  by  the  acts  of  the  parties 
by  locating  the  third  line  on  the  land,  or  fixing  the  point  of  its  inter- 
section with  Dix  Street  by  a  monument  or  otherwise,  would  present 
a  question  for  the  jury,  we  need  not  consider,  because  the  evidence 
offered  was  not  sufficient  to  show  such  acts,  and  the  question  pre- 
sented was  one  of  laAv  upon  the  construction  of  the  deed. 

A  majority  of  the  court  are  of  opinion  that  the  ruling  excepted  to 
was  correct.  Exceptions  overruled} 


B.     On  Water. 

STARR  t'.  CHILD. 
20  Wend.  (N.  Y.)  149;  4  Hill  (N.  Y.)  369.     1838,  1842. 

This  was  an  action  of  ejectment,  tried  at  the  Monroe  Circuit  in 
October,  1835,  before  the  Hon.  Addison  (iardincr.  tlicn  one  of  the 
circuit  judges. 

1  In  Preston  v.  Bowmar,  6  Wheat.  (U.  S.)  580,  582.  Mr.  Justice  Story 
said :  "  It  may  be  laid  down  as  a  universal  rule,  that  course  and  distance 
yield  to  natural  and  ascertained  objects.  But  where  these  are  wanting,  and 
the  course  and  distance  cannot  be  reconciled,  there  is  no  universal  rule  that 
obliges  us  to  prefer  the  one  or  the  other.  Ca.'^es  may  exist  in  which  the  one 
or  the  other  may  be  preferred  upon  a  muiute  examination  of  all  the 
circumstances." 

In  Kruse  v.  Scripps,  11  111.  98.  103,  the  court  said:  "If  a  tract  of  land 
is  conveyed  by  metes  and  bounds,  or  any  other  certain  description,  the  grantee 
takes  all  of  the  land  included  within  the  designated  limits,  although  the 
quantity  may  exceed  what  is  .stated  in  the  deed;  and  he  is  restricted  to  those 
limits,  if  the  quantity  turns  out  to  be  le.ss  than  is  represented.  The  state- 
ment of  quantity  is  considered  as  the  most  uncertain  part  of  the  descrip- 
tion, and  when  inconsistent  with  boundaries,  courses  or  distances,  must  be 
rejected." 


174  STARR    V.    CHILD  [CHAP.    IV 

The  plaintiffs  claimed  title  to  the  premises  in  question  on  the  fol- 
lowing state  of  facts:  It  was  admitted  that  previous  to  the  13th 
August,  1817,  Charles  Carroll,  William  Fitzhugh  and  Nathaniel 
Rochester  were  seised  of  a  tract  of  100  acres  of  land  covering  the 
premises  in  question,  and  that  both  plaintiffs  and  defendants  claim 
under  that  title.  The  plaintiffs  then  produced  in  evidence,  1.  A 
IJartitlon  deed  between  Carroll,  Fitzhugh  and  Rochester  of  the  above 
tract,  bearing  date  13th  August,  1817,  by  which  mill-seat  lot  num- 
ber twelve  (the  premises  in  question),  among  other  parcels,  was  al- 
lotted to  Rochester;  2.  A  second  partition  deed  between  the  same 
parties,  bearing  date  19th  September,  1822,  whereby  certain  altera- 
tions were  made  in  the  numbers  and  size  of  various  mill-seat  lots; 
and  other  mill-seats  laid  out  and  divided  between  them;  3.  A  deed 
from  Rochester  to  William  Cobb,  bearing  date  9th  November,  1819, 
conveying  "All  that  certain  piece  or  parcel  of  mill-seat  lot  No.  12 
in  the  village  of  Rochester,  beginning  at  the  northwest  corner  thereof 
on  the  south  bounds  of  Buffalo  Street,  running  thence  southwardly 
along  the  east  bounds  of  the  mill-yard  and  at  right  angles  with 
Buffalo  Street  30  feet;  thence  eastwardly  parallel  with  Buffalo 
Street  about  45  feet  to  the  Genesee  River ;  thence  northwardly  along 
the  shore  of  said  river  to  Buffalo  Street;  thence  along  the  south 
bounds  of  Buffalo  Street  westwardly  to  the  place  of  beginning:  to- 
gether with  the  privilege  of  talcing  water  from  the  present  mill-race 
near  the  mill  now  occupied  by  Bissel  &  Ely;  such  water  to  be  con- 
veyed in  front  of  and  near  the  said  mill  and  below  the  surface  of  the 
ground,  to  be  kept  well  covered  so  as  not  to  obstruct  the  passage  and 
use  of  the  mill-yard,  &c.  &c.  (prescribing  the  quantity  of  water  to  be 
used ;  giving  a  right  in  common  to  the  use  of  the  mill-yard  fronting 
the  mill  occupied  by  Bissel  &  Ely  and  extending  to  the  said  lot  num- 
ber twelve;  and  subjecting  the  grantee  to  a  proportion  of  the  expense 
of  repairs  on  the  dam  and  race-way,  &c.  &c.)  ;  and  4.  The  plaintiffs 
produced  in  evidence  a  deed  from  the  said  Nathaniel  Rochester  to 
Thomas  Morgan  bearing  date  on  the  same  day  wnth  the  deed  last 
mentioned,  conveying  the  residue  of  the  said  mill-seat  lot  No.  12  to 
the  grantee,  in  which  the  premises  conveyed  are  described  as  begin- 
ning at  the  south loest  corner  of  the  premises  conveyed  to  Cobb,  run- 
ning thence  southwardly  along  the  east  bounds  of  the  mill-yard  25 
feet ;  "  thence  eastwardly  along  the  north  bound  of  an  alley  and  paral- 
lel with  Buffalo  Street  to  the  Genesee  River  (nearly  fifty  feet) ; 
thence  northwardly  along  the  shore  of  the  Genesee  River  to  William 
Cobb's  corner;"  thence  to  the  place  of  beginning.  "Together  with 
the  privilege  of  taking  ivater  from  the  present  mill-race/'  kc.  &c. 
(containing  the  same  provisions  as  in  the  deed  to  Cobb.)  After  the 
production  of  those  deeds,  the  plaintiffs  deduced  a  regular  title 
under  the  same  to  themselves.  The  judge  charged  the  jury  that 
upon  a  true  construction  of  the  deeds  executed  by  Rochester  to 
Cobb  and  Morgan,  the  grantee  had  obtained  title  to  the  centre  of  the 


SECT.    II  ]  STARR    V.    CHILD  175 

Genesee  River,  and  that  title  having  become  vested  in  the  plaintiffs, 
he  directed  the  jury  to  find  a  verdict  for  them,  which  they  did  accord- 
ing to  such  direction.^ 

Walworth,   Chancellor.     The   decision   of   a   majority   of   this 
court  in  the  case  of  The  Canal  Appraisers  v.  The  People  ex.  rel. 
Tibbitts^  17  Wend.  590,  although  put  upon  other  grounds  by  some  of 
the  members  who  voted  for  a  reversal  of  the  decision  of  the  Supreme 
Court,  cast  a  shade  of  doubt  upon  the  question  whether  the  common 
law  rule  prevailed  here  as  to  the  construction  of  conveyances  of  lands 
bounded  by  or  upon  a  river  or  stream  above  tide  waters.     That 
doubt,  however,  is  probably  removed  by  the  recent  decision  of  this 
court  in  the' case  of  The  Commissioners  of  the  Canal  Fund  v.  Kenip- 
shall,  26  Wend.  Kep.  404,  in  which  the  judgment  of  the  Supreme 
Court  in  favor  of  the  riparian  owner  was  unanimously  affirmed. 
.The  common  law  rule,  as  I  understand  it,  is  that  the  riparian  pro- 
prietor is  prima  facie  the  owiier  of  the  alveus  or  bed  of  the  river 
adjoining  his  land,  to  the  middle  or  thread  of  the  stream;  that  is, 
where  the  terms  of  his  grant  do  not  appear  and  show  that  he  is 
limited.     And  when  by  the  terms  of  the  grant  to  the  riparian  pro- 
prietor he  is  bounded  upon  the  river  generally  as  a  natural  houndary, 
or,  in  the  language  of  Pothier,  where  the  grant  to  the  riparian  pro- 
prietor has  no  other  boundary  on  the  side  thereof  which  is  adjacent 
to  the  river  but  the  stream  itself,  the  legal  presumption  is  that  his 
grantor  intended  to  convey  to  the  middle  of  such  stream;  subject  to 
the  right  of  the  public  to  use  the  waters  of  the  river  for  the  purposes 
of  navigation  in  their  accustomed  channel,  where  they  are  by  nature 
susceptible  of  such  use.    It  has  also  been  decided  that  the  same  prin- 
ciple applies  to  the  construction  of  grants  bounded  generally  upon 
highways,  party-walls,  ditches,  (Src,  which  constitute  natural  bound- 
aries between  the  lands  granted  and  the  adjacent  property.     Thus, 
in  Jacl\:son  v.  Uaihaway,  15  John.  Rep.  454,  although  by  the  terms 
of  the  grant  in  that  case  the  Supreme  Court  considered  the  whole  of 
the  highway  as  excluded,  Mr.  Justice  Piatt,  who  delivered  the  opinion 
of  the  court,  says:     "Where  a  farm  is  bounded  along  the  highway, 
or  upon  a  highway,  or  as  running  to  a  highway,  there  is  reason  to 
intend  that  the  parties  meant  the  middle  of  the  highway."     So  in 
Warner  v.  Southworth,  6  Conn.  Rep.  471,  474,  where  the  grantor  had 
divided  one  of  his  lots  from  another  by  an  artificial  ditch  and  em- 
bankment, and  afterwards  conveyed  one  of  those  lots  by  a  deed  which 
bounded  it  upon  the  ditch  generally,  Avithout  any  words  of  restriction, 
the  Court  of  Errors  in  our  sister  State  of  Connecticut  decided  that 
the  grant  extended  to  the  middle  of  the  ditch.     And  Judge  Daggett, 
in  delivering  the  opinion  of  the  court  in  that  case,  says:   "Doubtless 

1  The  defendants,  having;  excepted  to  the  eharpe  of  the  judpe,  moved  in 
the  Sui:>renie  Court  for  a  new  trial.  This  motion  was  denied,  and  the  ca.se 
was  then  brought  by  writ  of  error  before  the  Court  for  the  Correction  of 
Errors.    Only  the  opinion  of  Walworth,  C,  is  given. 


176  STARR    V.    CHILD  [CHAP.   IV 

had  the  boundary  line  been  a  stone  wall,  six  feet  in  width  at  the 
bottom,  the  grant  would  have  extended  to  the  centre  of  it,"  (See 
also  3  Kent's  Com.  432.) 

Although   this   principle  exists  as   to   the   construction   of  grants 
which  are  unrestricted  in  their  terms,  and  also  as  to  the  legal  pre- 
sumption of  ownership  by  the  riparian  proprietor  where  from  lapse 
of  time  or  otherwise  the  terms  of  his  grant  from  the  former  or 
original  proprietors  cannot  be  ascertained,  there  can  be  no  doubt  of 
the  right  of  the  general  owner  of  the  bed  of  the  river,  as  well  as  of 
the  land  upon  its  banks,  so  to  limit  or  restrict  his  conveyance  of  the 
one  as  not  to  divest  himself  of  his  property  in  the  other.     Lord 
Chief  Justice  Hale,  in  his  learned  treatise  De  Jure  Maris,  &c.,  ad- 
mits that  the  prima  facie  presumption  of  ownership  of  the  bed  of 
the  stream  by  the  riparian  proprietor  may  be  rebutted  by  evidence 
that  the  contrary  is  the  fact.    He  says,  "  one  man  may  have  the  river" 
and  others  the  soil  adjacent,  or  one  may  have  the  river  and  soil 
thereof,  and  another  the  free  or  several  fishing  in  that  river."     (See 
Harg.  Law  Tr.   5.)     And  the  learned   and  venerable  commentator 
upon  the  American  law  says,  it  is  competent  for  the  riparian  pro- 
prietor to  sell  his  upland  to  the  top  or  edge  of  the  bank  of  a  river, 
and  to  reserve  the  stream  or  the  flats  below  high  water-mark,  if  he 
does  it  b}'^  clear   and   specific   boundaries.      (3    Kent's   Com.    434.) 
This  was  also  expressly  decided  by  Mr.  Justice  Washington  in  the 
Circuit  Court  of  the  United  States  for  the  Third  Circuit,  in  the 
case  of  Den  v.  Wright,  Peter's  C.  C.  Rep.  64,  where  the  owner  of  the 
alveus  or  bed  of  the  creek,  and  also  of  the  adjacent  land  upon  the 
south  bank  thereof,  had  conveyed  29  acres  in  the  bed  of  the  creek, 
bounded  by  the  sides  of  the  same,  without  any  of  the  land  upon 
either  of  the  adjacent  banks.     In  the  case  of  DunJap  v.  Stetson,  4 
Mason's  Rep.  349,  in  the  Circuit  Court  of  the  United  States  for  the 
First  Circuit,  where  the  lands  granted,  instead  of  being  bounded  on 
the  Penobscot  River  generally,  were  described  as  commencing  at  a 
stake  and  stones  on  its  west  bank,  and  after  running  on  the  other 
sides  of  the  lot  certain  courses  and  distances  to  another  stake  and 
stones  on  the  same  bank  of  that  river,  and  thence  vp07i  the  hanh  at 
high  water-marh,  to  the  place  of  beginning,  Judge  Story  decided,  that 
the  flats  between  high  and  low  water-mark  were  not  conveyed  by  the 
deed;  although  by  a  colonial  ordinance,  which  was  recognized  as  the 
existing  law  of  the  State,  grants  bounded  generally  upon  tide  waters 
carried   the   grantee   to   low   water-mark.      A    similar   decision   was 
made  by  the  Supreme  Court  of  Massachusetts  in  the  case  of  Stover 
V.  Freeman,  6  Mass.  435.     In  that  case  one  of  the  conveyances  de- 
scribed the  lines  as  running  to  the  shore  of  Gamaliel's  N'eek,  and 
thence  by  the  shore,  <S:c.     xVnd  in  the  other  deed  these  lines  were  de- 
scribed as  running  to  a  heap  of  stones  at  the  shore  of  the  neck,  and 
thence  ly  the  shore  to  the  land  conveyed  by  the  first  deed.     And  in 
the  case  of  Hatch  v.  Dwight,  17  Mass.  R.  298,  the  same  court  decided 


SECT.    Il]  STARR    ?'.    CHILD  '  177 

that  where  land  was  boimded  by  the  hank  of  a  stream,  it  necessarily 
excluded  the  stream  itself.  In  delivering  the  opinion  of  the  court 
in  that  case,  Parker,  C.  J.,  says,  that  the  owner  may  undoubtedly 
sell  the  land  without  the  privilege  of  the  stream,  "  as  he  will  do 
if  he  bounds  his  grant  by  the  bank." 

Running  to  a  monument  standing  on  the  bank,  and  from  thence 
running  by  the  river  or  along  the  river,  kc,  does  not  restrict  the  grant 
to  the  bank  of  the  stream ;  for  the  monuments  in  such  cases  are  only 
referred  to  as  giving  the  directions  of  the  lines  to  the  river,  and  not 
as  restricting  the  boundary  on  the  river}  If  the  grantor,  however, 
after  giving  the  line  to  the  river,  bouitds  liis  land  by  the  hanh  of  the 
river,  or  describes  the  line  as  running  along  the  hank  of  the  river, 
or  bounds  it  upon  the  margin  of  the  river,  he  shows  that  he  does  not 
consider  the  whole  alveus  of  the  stream  a  mere  mathematical  line, 
so  as  to  carry  his  grant  to  the  middle  of  the  river.  And  it  appears 
to  me  equally  clear  that  the  grant  is  restricted  where  it  is  bounded 
by  the  shore  of  the  river,  as  in  the  present  case. 

The  shore  of  tide  water  is  that  portion  of  the  land  which  is  alter- 
nately covered  by  the  water  and  left  hare  by  the  flux  and  reflux  of 
the  tide.  Properly  speaking,  therefore,  a  river  in  which  the  tide 
does  not  ebb  and  flow  has  no  shores,  in  the  legal  sense  of  the  term. 
It  has  ripam,  but  not  littus.  The  term  "  shores,"  however,  ^vhen 
applied  to  such  a  river,  means  the  river's  banks  above  the  low  water- 
mark ;  or  rather,  those  portions  of  the  banks  of  the  river  Avhich  touch 
the  margin  or  edges  of  the  water  of  the  stream.  A  grant,  therefore, 
which  is  bounded  by  the  shore  of  a  fresh-water  river,  conveys  the 
land  to  the  water's  edge,  at  low  w^ater;  and,  as  in  the  case  of  lands 
bounded  upon  tide  waters,  that  boundary  of  the  grant  is  liable  to 
be  changed  by  the  gradual  alterations  of  the  shore  by  alluvial  incre- 
ment, or  the  attrition  of  the  water. 

The  fact  that  the  premises  conveyed  in  this  case  are  described  in 
the  deeds  as  mill-lots,  cannot  operate  to  extend  the  grants  into  the 
alveus  or  bed  of  the  river.  For  the  deeds  also  show  that  the  con- 
templated mills  were  to  be  supplied  with  water  from  the  mill-race 
already  constructed;  and  not  by  water  to  be  taken  out  of  the  Genesee 
River,  opposite  the  lots  granted.  And  the  right  to  discharge  the  water 
into  the  river,  after  it  has  been  used  to  propel  the  machinery  on  the 
mill-lots,  is  at  most  but  an  easement;  not  requiring  for  its  enjoyment 
the  ownership  of  any  part  of  the  bed  of  the  stream  by  the  grantees. 
Upon  the  question,  therefore,  whether  the  bed  of  the  river  passed 
by  those  deeds,  I  concur  with  Mr.  Justice  Bronson,  in  the  opinion 
given  by  him  in  the  court  below,  dissenting  from  the  conclusion  at 
which  his  two  associates  on  the  bench  had  arrived. 

For  that  reason  I  shall  vote  to  reverse  the  judgment  of  the  Supreme 

1  So  Cold  Spring  Iron  Works  v.  Tolland.  9  Cu^h.  (Mass.)  492;  Kent  v. 
Taylor,  64  N.  H.  489;  Simmom  v.  Paterson,  84  N.  J.  Eq.  23;  Luce  v.  Carley, 
24  Wend.  (N.  Y.)  451. 


178  SLEEPER    V.    LACONIA  [CHAP.    IV 

Court,  and  to  award  a  venire  de  novo;  to  the  end  that  the  jury  may 
ascertain  the  part  of  the  premises  in  controversy  above  ordinary  low 
water-mark,  if  any,  which  was  in  possession  of  the  defendants  in 
the  court  below  at  the  time  of  the  commencement  of  this  suit.  And 
if  a  majority  of  the  court  should  concur  with  me  in  supposing  that 
the  judgment  which  was  rendered  by  the  Supreme  Court  should  be 
reversed,  it  appears  to  be  a  case  where  the  costs  of  this  writ  of 
error  may  very  properly  be  left  to  abide  the  event  of  the  suit  uj^on 
the  venire  cle  novo  which  must  then  be  awarded. 

On  the  question  being  put,  "  Shall  this  judgment  be  reversed  ?  " 
the  members  of  the  court  voted  as  follows  :  — 

For  reversal:  The  President,  the  Chancellor,  and  Senators 
Clark,  Ely,  Franklin,  Peck,  Root,  Scott,  Strong,  Varian,  and 
Varney  —  11. 

For  affirmance:  Senators  Bartlit,  Bockee,  Denniston,  Dixon, 
Hunt,  Johnson,  N^icholas,  Platt,  Buger,  and  Works  — 10. 

Judgment  reversed} 


SLEEPER  V.  LACON^IA 
60  N.  H.  201.     1880. 

Appeal,  from  the  award  of  damages  by  the  selectmen,  for  land 
taken  for  a  highway.  Facts  found  by  referees,  who  awarded  that 
the  i^laintiff  should  recover  $400  if  the  title  of  the  plaintiff  extended 
to  the  centre  of  the  Winnipiseogee  River.  He  derived  his  title 
through,  one  Reeves  from  Baldwin,  who  was  bounded  by  the  river. 
The  description  of  the  land,  as  given  in  the  deed  from  Baldwin  to 
Reeves,  and  in  the  deed  from  Reeves  to  the  plaintiff,  so  far  as  mate- 
rial to  determine  the  question  raised,  is  as  follows :  "  thence  north- 
westerly on  the  line  of  Baldwin's  land  to  the  river,  thence  north- 
easterly on  the  river  shore  to  Church  Street."  When  the  plaintiff 
purchased  his  lot,  there  Avas  between  the  high  ground  on  his  lot  and 
the  main  channel  of  the  river  a  low  piece  of  ground  covered  with 
water.  It  was  over  this  low  ground  that  the  highway  was  partly 
laid. 

The  referee  rejected  evidence  offered  by  the  defendants  to  show 
that  at  the  time  BaldAvin  conveyed  to  Reeves  it  was  verbally  agreed 
between  him  and  Baldwin  that  the  shore  of  the  river  should  be  the 
boundary  of  the  lot;  and  the  defendants  excepted. 

Stanley,  J.  Baldwin  once  owned  the  premises  in  question.  His 
line  extended  to  the  river,  "  thence  on  the  river,"  &c.     This  gave  him 

1  And  see  Rockwell  v.  Baldwin,  53  111.  19;  Brophy  v.  Richeson,  137  Ind. 
114;  Murphy  v.  Copeland,  51  Iowa  515;  Bradjord  v.  Cressey,  45  Me.  9; 
Whittier  v.  Parmenter  Ice  Co.,  90  Vt.  16;  Allen  v.  Weber,  80  Wis.  531. 

Compare  Hanlon  v.  Hohson,  24  Colo.  284;  Morrison  v.  Keen,  3  Greenl. 
(Me.)  474;  Harlow  v.  Fisk,  12  Cush.  (Mass.)  302. 


SECT.    II  ]  SLEEPER    V.    LACONIA  179 

the  soil  to  the  thread  of  the  stream.  State  v.  Gilmanton,  9  N.  H.  461 ; 
Greeiileaf  v.  Kilton,  11  N.  H.  530;  State  v.  Boscawen,  28  N.  H.  217; 
Nichols  V.  Suncook  Mfg.  Co.,  34  N.  H.  345,  349 ;  Kimball  v.  Schoff, 
40  N.  H.  190;  Bradford  v.  Cressey,  45  Me.  9.  Eunning  the  line  to 
the  river  does  not  restrict  the  grant  to  bank  or  shore  of  the  river. 
The  river  is  the  monument,  and,  like  a  tree,  a  stake,  a  stone,  or  any 
other  monument,  controls  the  distance,  and  is  to  be  considered  as 
located  equally  on  the  land  granted  and  the  land  of  the  adjoining 
owner.  The  centre  of  the  monument  is  the  boundary,  and  the  grant 
extends  to  that  point. 

These  views  are  not  controverted,  but  the  defendants  contend 
that  the  clause  in  the  deed  from  Baldwin  to-  Reeves  and  from  Reeves 
to  the  plaintiff,  "  thence  north-easterly  on  the  river  shore,"  limits 
and  restricts  the  grant  to  the  bank  or  shore  of  the  river.  In  Wood- 
man V.  Spencer,  54  N.  H.  507,*  this  question  was  considered  in  re- 
spect to  land  bounded  by  a  highway,  and  it  was  there  held  that  the 
expressions  "  on  the  highway,"  and  "  by  the  side  of  the  highway," 
were  identical  in  meaning  and  effect ;  and  this  view  is  fully  sustained 
by  Dovaston  v.  Paine,  2  Sm.  L.  C.  H.  &  W.,  notes  213,  217,  232,  234, 
235,  237,  238;  3Iotley  v.  Sargent,  119  Mass,  231;  Peck  v.  Denniston, 
121  Mass.  17;  O'ConneU  v.  Bryant,  121  Mass.  557.  The  rule  is  a 
presumed  understanding  of  the  parties  that  the  grantor  does  not 
retain  a  narrow  strip  of  land  under  a  stream  or  other  highway,  be- 
cause the  title  of  it  left  in  him  would  generally  be  of  little  use,  ex- 
cept for  a  purpose  of  annoyance  and  litigation. 

The  evidence  as  to  the  agreement  bctAveen  Baldwin  and  lieeves 
tended  to  contradict  the  deed,  and  was  properly  ex(duded.  Goodeno 
V.  Hutchinson,  50  N.  H.  159. 

Judgment  on  the  report  for  the  plaintiff  for  $400. 

Foster,  J.,  did  not  sit ;  the  others  concurred.^ 

1  Compare  Railway  Co.  v.  Piatt,  53  Ohio  St.  254;  Norcross  v.  Griffiths, 
65  Wis.  599;   Micklettiicait  v.  Newlaij  Bridge  Co.,  33  Ch.  D.  133. 

The  ordinaiy  rule  that  land  on  a  river  is  bounded  by  the  middle  of  the 
stream  is  not  affected  by  the  fact  that  the  land  consists  of  town  lots.  Watson 
V.  Peters,  26  Mich.  508;  Amohi  v.  Elmore,  16  Wis,  509. 

The  rules  are  the  same  on  an  artificial  as  on  a  natural  stream.  Warner  v. 
Southworth,  6  Conn.  471;  Agawaim  Canal  Co.  v.  Edward.'^,  36  Conn.  476. 

In  Loivcll  V.  Kobi7i.-<on,  16  Me.  357,  a  mill-dam  had  been  constructed  in  a 
river,  and  land  had  been  conveyed  boimded  on  the  mill-pond  so  formed. 
Held,  that  the  grantee  took  to  the  centre  of  "  stream  thus  flowed."  Com- 
pare Boardnian  v.  Scott,  102  Ga.  404,  417. 

In  Mill  Pirer  Mjg.  Co.  v.  Smith,,  34  Conn.  462,  it  was  held  that  where 
land  in  a  deed  was  bounded  by  an  artificial  pond  formed  by  the  erection  of 
a  dam  across  a  stream  the  grantee  took  to  the  middle  of  the  original  stream 
as  if  no  pond  existed.    And  see  Providence  Club  v.  Miller  Co.,  117  Va.  129. 

The  grantee  of  land  bounded  by  a  natural  pond  takes  to  the  centre. 
Hardin  v.  .Jordan,  140  U.  S.  371 ;  Couveneur  v.  National  Ice  Co.,  134  N.  Y. 
355;  Lembeck  v.  Nye,  47  Ohio  St.  336.  Contra,  School  Trustees  v.  Schroll, 
120  III.  .509;  Kanou.'^e  v.  Slorkbower,  48  N.  J.  Eq.  42.  Compare  Patapsco 
Guano  Co.  v.  Boivers-White  Lumber  Co.,  146  N.  C.  187. 


180  ON    WAYS  [chap.   IV 

C.     On  Ways 
Note 

"  Whenever  land  is  described  as  bounded  by  other  land,  or  by  a  building 
or  structure,  the  name  of  which,  according  to  its  legal  and  ordinary  meaning, 
includes  the  title  in  the  land  of  which  it  has  been  made  part,  as  a  house,  a 
mill,  a  wharf,  or  the  like,  the  side  of  the  land  or  structure  referred  to  as  a 
boundary  is  the  limit  of  the  grant;  but  when  the  boundary  line  is  simply  by 
an  object,  whether  natural  or  artificial,  the  name  of  which  is  used  in  ordinary 
speech  as  defining  a  boundary,  and  not  as  describing  a  title  in  fee,  and  which 
does  not 'in  its  description  or  nature  include  the  earth  as  far  down  as  the 
grantor  owns,  and  yet  which  has  width,  as  in  the  case  of  a  way,  a  river,  a 
ditch,  a  wall,  a  fence,  a  tree,  or  a  stake  and  stones,  tlien  the  centre  of  the 
thing  so  running  over  or  standing  on  the  land  is  the  boundary  of  the  lot 
granted."    Per  Gray,  J.,  Boston  v.  Richardson,  13  All.  (Mass.)   146,  154,  155. 

Where  the  grantor  owns  to  the  centre  of  a  public  way  a  conveyance  of 
land  bounded  "  by,"  or  "  on,"  or  described  as  running  "  along  "  the  highway 
will  carry  the  grant  to  the  centre  of  the  highway,  unless  a  contrary  intention 
appear  on  the  deed.  Sibley  v.  McCool,  86  Ga.  1 ;  Blalock  v.  Atwood,  154  Ky. 
394;  White  v.  Godfrey,  97  Mass.  472;  McCarthy  v.  Everett,  234  Mass.  231; 
Haberman  v.  Baker,  128  N.  Y.  253;  Cromn  v.  JancsiiUe  T.  Co.,  163  Wis. 
436.  And  see  Hclmer  v.  Castlr,  109  111.  664.  This  presumption  was  rebutted 
in  Hobson  v.  Philadelphia,  150  Pa.  595  and  in  Pryor  v.  Pctre,  [1894]  2  Ch.  11. 
Compare  Fra^-^er  v.  Ott,  95  Cal.  661 ;  Dodd  v.  Witt,  139  Mass.  63. 

Even  though  the  length  of  the  boundary  lines  would  carry  the  granted 
premises  only  to  the  edge  of  the  way.  Moody  v.  Palmer,  50  Cal.  31 ;  Oxton 
V.  Groves,  68  Me.  371;  Newhall  v.  Ireson,  8  Cush.  (Mass.)  595.  Compare 
Wegge  v.  Madler,  129  Wis.  412;  Commissioners  v.  Central  Ry.  Co.,  [1913] 
A.  C.  364. 

And  the  rule  is  the  same  where  land  abutting  on  such  way  is  conveyed 
without  mentioning  the  way.  Champlin  v.  Pendleton,  13  Conn.  23;  Gear 
V.  Barnum,  37  Conn.  229;  Cox.  v.  Louisville  Rd.  Co.,  48  Ind.  178;  Grant  v. 


In  Bradley  v.  Rice,  13  Me.  198,  land  was  bounded  by  a  pond,  which,  at 
the  time  of  the  conveyance,  was  raised  to  an  artificial  height  by  a  dam. 
Held,  that  the  grantee  was  entitled  to  the  land  only  to  the  margin  as  it  ex- 
isted at  the  time  of  the  conveyance,  and  not  as  it  would  be  in  its  natural 
state.  In  Paine  v.  Woods,  108  Mass.  160,  land  was  bounded  by  a  pond,  which, 
at  the  time  of  the  conveyance  was  raised  to  an  artificial  height  by  a  dam. 
For  many  years  it  had  been  the  usage  of  the  owners  of  the  dam  to  open 
sluiceways  therein  during  several  months  of  each  year,  and  the  pond  in 
those  months  was  reduced  to  its  natural  state.  Held,  that  the  grantee  was 
entitled  to  the  land  to  the  low  water  mark  of  the  pond  in  its  natural  state. 

In  Halsey  v.  McCormick,  13  N.  Y.  296,  land  was  bounded  by  the  bank  of 
a  creek.  The  judge  below  charged  that  the  bank  "  was  that  line  to  which 
the  water  would  flow  when  it  was  ordinary  high  water  in  spring. and  fall." 
Held,  error.  The  grantee  was  entitled  to  the  water's  edge  at  low  water. 
Murphy  v.  Copeland,  58  Iowa  409,  accord.  See  also  Stone  v.  Augusta,  46 
Me.  127;  Stevens  v.  King,  76  Me.  197;  Yates  v.  Van  De  Bogert,  56  N.  Y.  526; 
Lamb  v.  Rickctts,  11  Ohio  311;  Palmer  v.  Farrell,  129  Pa.  162;  Wrathall  v. 
Miller,  51  Utah  218. 

On  bounding  "  by  the  shore  "  in  Massachusetts  and  Maine,  where  private 
ownership  extends  to  low  water,  see  Dunlap  v.  Stetson,  4  Mason,  (U.  S.)  349, 
365;  Broum  v.  Heard,  85  Me.  294;  9  Gray  (Mass.)  524,  note;  Litchfield  v. 
Scituaie,  136  Mass.  39,  48;  Haskell  v.  Friend,  196  Mass.  198. 


SECT.    II  ]  ON    WAYS  181 

Moon,  128  Mo.  43;  Durhin  v.  Roanoke  Bldg.  Co.,  107  Va.  753;  Km  eland  v. 
Van  Valkenburgh,  46  Wis.  434;  Berridgc  v.  Ward,  10  C.  B.  N.  S.  400.  But 
see  Hamon  v.  Campbell,  20  Md.  223;  Hohoken  Land  Co.  v.  Kerrigan,  31 
N.  J.  L.  13. 

On  the  effect  of  a  change  in  the  location  of  the  highway  after  the  making 
of  the  conveyance,  see  Williams  v.  Johnson,  149  Ky.  409;  White's  Bank  v. 
Nichols,  64  N.  Y.  65. 

A  convej'ance  describing  land  as  bounded  by  the  "side,"  "  margin," 
"  edge,"  or  "  line  "  of  a  highway,  to  the  centre  of  which  the  grantor  owns 
the  fee,  has  been  held  not  to  pass  that  portion  of  the  highway.  Warden  v. 
South  Pasadena  Co.,  178  Cal.  440  (statute) ;  Hamlin  v.  Att'y  Gcn'l,  195 
Mass.  309;  Grand  Rapids  Rd.  Co.  v.  Heisel,  38  Mich.  62;  Betcher  v.  Chicago 
Milw.  Ry.  Co.,  110  Minn.  228;  Hughes  v.  Providence  Rd.  Co.,  2  R.  I.  508; 
Railroad  v.  Bingham,  87  Tenn.  522;  Buck  v.  Squiers,  22  Vt.  484;  Cole  v. 
Haynes,  22  Vt.  588.  Compare  O'Connell  v.  Bryant,  121  Mass.  557;  Matter 
of  City  of  New  York,  209  N.  Y.  344.  Contra,  Helmer  v.  Castle,  109  111.  664; 
Woodman  v.  Spencer,  54  N.  H.  507;  Paul  v.  Carver,  26  Pa.  223;  Cox  v. 
Freedley,  33  Pa.  124;  Kneeland  v.  Van  Valkenburgh,  46  Wis.  434.  Compare 
Anthony  v.  Providence,  18  R.  I.  699. 

If  a  monument  or  point  on  the  side  of  a  highway  is  designated  as  the 
starting  point  or  the  terminus  of  a  boundary  line  running  along  the  high- 
way the  authorities  are  divided  as  to  whether  the  portion  of  the  way  owned 
by  the  grantor  passes.  That  it  does  pass,  see  Lov)  v.  Tibbetts,  72  Me.  92; 
White  V.  Godfrey,  97  Mass.  472;  Peck  v.  Denniston,  121  Mass.  17;  Dean 
V.  Lowell,  135  Mass.  55;  McKenzie  v.  Gleason,  184  Mass.  452;  Salter  v. 
Jonas,  39  N.  J.  L.  469;  Van  Winkle  v.  Van  Winkle,  184  N.  Y.  193;  Cox  v. 
Freedley,  33  Pa.  124;  Mar.^h  v.  Burt,  34  Vt.  289.  That  it  does  not  pass, 
see  Peabody  Co.  v.  Sadler,  63  Md.  533;  Hunt  v.  Brown,  75  Md.  481 ;  Sibley 
V.  Holden,  10  Pick.  (Mass.)  249;  Smith  v.Slorum,  9  Gray  (Mass.)  36;  Kings 
County  Insurance  Co.  v.  Stevens,  87  N.  Y.  287.  Compare  Hoboken  Land  Co. 
V.  Kerrigan,  31  N.  J.  L.  13. 

The  following  cases  hold  that  the  rules  as  to  conveyances  of  land  border- 
ing on  a  private  way,  or  on  land  intended  to  be  dedicated  in  the  future  as 
a  highway,  are  the  same  as  in  the  case  of  a  public  way.  Fisher  v.  Smith, 
9  Gray  (Mass.)  441;  Stark  v.  Co'ffin,  105  Mass.  328;  Motley  v.  Sargent,  119 
Mass.  231;  Gould  v.  Eastern  Rd.  Co.,  142  Mass.  85;  Bissell  v.  N.  Y.  Central 
Rd.  Co.,  23  N.  Y.  61;  Matter  oj  Ladue,  118  N.  Y.  213;  Saccone  v.  We.st  End 
Trust  Co.,  224  Pa.  554  (private  alley)  [but  see  in  the  case  of  an  unopened 
street  Clymer  v.  Roberts,  220  Pa.  162,  164].  See  Morgan  v.  Moore,  3  Gray 
(Mass.)  319;  Codman  v.  Evans,  1  All.  (Mass.)  443;  Clark  v.  Parker,  106 
Mass.  554.  Contra,  Seery  v.  Waterbury,  82  Conn.  567;  Bangor  House  Pro- 
prietary V.  Broum,  33  Me.  309;  Mott  v.  Mott,  68  N.  Y.  246  i.semble) ;  Leigh 
V.  Jack,  5  Exch.  D.  264.  Compare  Brown  v.  Tabcr,  103  Iowa  1;  White  v. 
Jefferson,  110  Minn.  276;  Empcnger  v.  Fairley,  110  Minn.  186. 

A,  owTier  of  a  tract  of  land,  laid  it  out  in  village  lots.  The  streets  there- 
in were  uniformly  eighty  feet  in  width,  except  one  street  on  the  margin  of 
the  tract  which  was  only  forty  feet  in  width.  ^4  sold  to  B  lots  bounded  on 
the  marginal  street.  Neither  A  nor  B  owned  the  land  upon  the  opposite  side. 
Held,  that  B  acquired  the  fee  of  the  whole  of  that  portion  of  the  street 
upon  which  his  lots  bounded.  In  re  Robbins,  34  Minn.  99.  Haberman  v. 
BaJcer,  128  N.  Y.  253.  accord.  Contra,  Gould  v.  Wagner,  196  Mass.  270. 
Compare,  where  the  ownership  of  the  way  confers  riparian  rights.  Banks  v. 
Ogdcn,  2  Wall.  (U.  S.)  57;  Delachai>^e  v."  Maginnis,  44  L.  Ann.  1043;  Bris- 
bane V.  St.  Paul  d-  S.  C.  Rd.  Co.,  23  Minn.  114;  Ocean  City  Hotel  Co.  v. 
Sooy,  77  N.  J.  L.  527;  Johnson  v.  Grenell,  188  N  Y.  407;  Gcddes  Salt  Co.  v. 
Niagara  Power  Co.,  207  N.  Y.  500;  Giilord  v.  Horton,  54  Wash.  595. 


CHAPTER  V 
ESTATES  CREATED 

SECTION  I 

ESTATES    IN    FEE    SIMPLE 

Lit.  §  1.  Tenant  in  fee  simple  is  lie  which  hath  lands  or  tene- 
ments to  hold  to  him  and  his  heirs  forever.  And  it  is  called  in  Latin, 
feodum  simplex,  for  feodum  is  the  same  that  inheritance  is,  and 
simplex  is  as  much  as  to  say,  lawful  or  pure.  And  so  feodum  simplex 
signifies  a  lawful  or  pure  inheritance.  Quia  feodum  idem  est  quo 
kcereditas,  et  simplex  idem  est  quod  legitimum  vel  purum.  Et  sic 
feodum  simplex  idem  est  quod  hcereditas  legitima,  vel  hcereditas 
pur  a.  For  if  a  man  would  purchase  lands  or  tenements  in  fee  simple, 
it  behooveth  him  to  have  these  words  in  his  purchase.  To  have  and 
to  hold  to  him  and  to  his  heirs:  for  these  words  (his  heirs)  make  the 
estate  of  inheritance.  Eor  if  a  man  purchase  lands  by  these  words, 
To  have  and  to  hold  to  him  forever :  or  by  these  words.  To  have  and 
to  hold  to  him  and  his  assigns  forever :  in  these  two  cases  he  hath 
but  an  estate  for  term  of  life,  for  that  there  lack  these  words  (his 
heirs),  which  words  only  make  an  estate  of  inheritance  in  all  feoff- 
ments and  grants. 

Co.  Lit.  8  b.  And  it  is  to  be  observed,  that  every  word  of 
Littleton  is  worthy  of  observation.  First  (heirs)  in  the  plural 
number;  for  if  a  man  give  land  to  a  man  and  to  his  heir  in  the 
singular  number,  he  hath  but  an  estate  for  life,  for  his  heir  cannot 
take  a  fee  simple  by  descent,  because  he  is  but  one,  and  therefore 
in  that  case  his  heir  shall  take  nothing.^  Also  observable  is  this 
conjunctive  {et).  For  if  a  man  give  lauds  to  one,  To  have  and  to 
hold  to  him  or  his  heirs,  he  hath  but  an  estate  for  life,  for  the  uncer- 
tainty.-^ .  .  .  Here  Littleton  treateth  of  purchases  by  natural  per- 
sons, and  not  of  bodies  politic  or  corporate ;  for  if  lands  be  given  to  a 
sole  body  politic  or  corporate  (as  to  a  bishop,  parson,  vicar,  master 
of  an  hospital,  &c.),  there  to  give  him  an  estate  of  inheritance  in  his 
politic  or  corporate  capacity,  he  must  have  these  words,  To  have  and 
to  hold  to  him  and  his  successors ;  for  without  these  words  successors, 
in  those  cases  there  passeth  no  inheritance;  for  as  the  heir  doth 

1  See  Harg.,  note  ad  lac;  Elphinstone,  Deeds.  Eule  67,  Obs. 

2  '■  As  to  the  construction  contended  for,  although  it  is  supported  by  a 
dictum  of  Lord  Coke's,  it  is  a  strictness  not  to  be  tolerated  at  the  pre.sent 
day."    Per  Sewall.  J.,  in  White  v.  Crawford,  10  Mass.  183,  188  (1813). 

182 


SECT.    l]  ESTATES   IN    FEE   SIMPLE  183 

inherit  to  the  ancestor,  so  the  successor  doth  succeed  to  the  predeces- 
sor, and  the  executor  to  the  testator.  But  it  appeareth  here  by  Little- 
ton, that  if  a  man  at  this  day  give  lands  to  I.  S;  and  his  successors, 
this  createth  no  fee  simple  in  him ;  for  Littleton  speaking  of  natural 
persons  saith  that  these  words  (his  heirs)  make  an  estate  of  inheri- 
tance in  all  feoffments  and  grants,  whereby  he  excludeth  these  words 
(his  successors). 

Co.  Lit.  9  b,  10  a.  And  here  it  is  to  be  observed  (that  I  may 
speak  once  for  all)  that  every  period  of  our  author  in  all  his  three 
books  contains  matter  of  excellent  learning,  necessarily  to  be  col- 
lected by  implication,  or  consequence.  For  example  he  saith  here, 
that  these  words  (his  heirs)  make  an  estate  of  inheritance  in  all 
feoifments  and  grants.  He  expressing  feoffments  and  grants,  neces- 
sarily implieth,  that  this  rule  extendeth  not,  — 

First,  to  last  ivills  and  tesfaments;  for  thereby,  as  he  himself 
after  saith,  an  estate  of  inheritance  may  pass  without  these  words 
(his  heirs).  As  if  a  man  devise  twenty  acres  to  another,  and  that 
he  shall  pay  to  his  executors  for  the  same  ten  pound,  hereby  the  de- 
visee hath  a  fee  simple  by  the  intent  of  the  devisor,  albeit  it  be  not 
to  the  value  of  the  land.  So  it  is  if  a  man  devise  lands  to  a  man 
in  perpetuiim,  or  to  give  and  to  sell,  or  in  feodo  simplici,  or  to  him 
and  to  his  assigns  forever.  In  these  cases  a  fee  simple  doth  pass  by 
the  intent  of  the  devisor.  But  if  the  devise  be  to  a  man  and  his 
assigns  Avithout  saying  (forever),  the  devisee  hath  but  an  estate  for 
life.  If  a  man  devise  land  to  a  man  et  sanguini  suo,  that  is  a  fee 
simple;  but  if  it  be  semini  suo,  it  is  an  estate  tail. 

Secondly,  that  it  extendeth  not  to  a  fine  sur  comisans  de  droit 
come  ceo  que  il  ad  de  son  done,  by  which  a  fee  also  may  pass  without 
this  word  (heirs)  in  respect  of  the  height  of  that  fine,  and  that 
thereby  is  implied  that  there  was  a  precedent  gift  in  fee. 

Thirdly,  nor  to  certain  releases,  and  that  three  manner  of  waj^s. 
First,  when  an  estate  of  inheritance  passeth  and  continueth;  as  if 
there  be  three  coparceners  or  joint  tenants,  and  one  of  them  release 
to  the  other  two,  or  to  one  of  them  generally  without  this  word 
(heirs),  by  Littleton's  own  ojjinion  they  have  a  fee  simple,  as  a])pear- 
eth  hereafter.  2.  By  release,  when  an  estate  of  inheritance  passeth 
and  continueth  not,  but  is  extinguished;  as  where  the  lord  releaseth 
to  the  tenant,  or  the  grantee  of  a  rent,  (Sic,  release  to  the  tenant  of 
the  land  generally  all  his  right,  kc,  hereby  the  seigniory,  rent,  <Src., 
are  extinguished  forever,  without  these  words  (heirs).  3.  Wlien  a 
bare  right  is  released,  as  when  the  disseisee  release  to  the  disseisor 
all  his  right,  he  need  not  (saith  our  author  in  another  place)  speak 
of  his  heirs.  But  of  all  these,  and  the  like  cases,  more  shall  be 
treated  in  their  proper  places.  4.  Nor  to  a  recovery.  A.,  seised 
of  land,  suffereth  B.  to  recover  the  land  against  him  by  a  common 
recovery,  where  the  judgment  is  quod  pro'd ictus  B.  recuperet  versus 
prced.    A.  tenementa  pra>dicta  cum  pert  in.;  yet  B.  recovereth  a  fee 


184  ESTATES    IN    FEE   SIMPLE  [CHAP.    V 

simple  without  this  word  (heirs) ;  for  regularly  every  recoverer  re- 
covereth  a  fee  simple.  5.  Nor  to  a  creation  of  nobility  by  writ;  for 
when  a  man  is  called  to  the  Upper  House  of  Parliament  by  writ, 
he  is  a  baron,  and  hath  inheritance  therein  without  the  word 
(heirs).  ... 

But  out  of  this  rule  of  our  author  the  law  doth  make  divers  excep- 
tions (ct  excepfio  probat  regulam)  ;  for  sometime  by  a  feoffment  a 
fee  simple  shall  pass  without  these  words  (his  heirs).  For  example, 
first,  if  the  father  enfeoff  the  son,  to  have  and  to  hold  to  him  and  to 
his  heirs,  and  the  son  enfeoffeth  the  father  as  fully  as  the  father  en- 
feoffed him,  by  this  the  father  hath  a  fee  simple,  quia  verba  relata 
hoc  maxime  operaniur  per  referent  lam  ut  in  esse  videntur. 
Secondly,  in  respect  of  the  consideration,  a  fee  simple  had  passed  at 
the  common  law,  without  this  word  (heirs),  and  at  this  day  an  estate 
of  inheritance  [in]  tail.  As  if  a  man  had  given  land  to  a  man  with 
his  daughter  in  frankmarriage  generally,  a  fee  simple  had  passed 
without  this  word  (heirs)  ;  for  there  is  no  consideration  so  much 
respected  in  law  as  the  consideration  of  marriage,  in  respect  of  alli- 
ance and  posterity.  Thirdly,  if  a  feoffment  or  grant  be  made  by 
deed  to  a  mayor  or  commonalty,  or  any  other  corporation  aggregate 
of  many  persons  capable,  they  have  a  fee  simple  Avithout  the  word 
(successors) ;  because  in  judgment  of  the  law  they  never  die.^ 
Fourthly,  in  case  of  a  sole  corporation  a  fee  simple  shall  sometime 
pass  without  this  word  (successors).  As  if  a  feoffment  in  fee  be 
made  of  land  to  a  bishop,  to  have  and  to  hold  to  him  in  libera  elee- 
mosina,  a  fee  simple  doth  pass  without  this  word  (successors).  And 
so  if  a  man  give  lands  to  the  king  by  deed  enrolled,  a  fee  simple 
doth  pass  without  these  words  (successors  or  heirs)  ;  because  in  judg- 
ment of* law  the  king  never  dieth.  Fifthly,  in  grants  sometimes  an 
inheritance  shall  pass  without  this  word  (heirs).  As  if  partition 
be  made  between  coparceners  of  lands  in  fee  simple,  and  for  owelty 
of  partition  the  one  grant  a  rent  to  the  other  generally,  the  grantee 
shall  have  a  fee  simple  without  this  w^ord  (heirs) ;  because  the 
grantor  hath  a  fee  simple,  in  consideration  whereof  he  granted  the 
rent :  Ipsoe  etenim  leges  cupiunt  ut  jure  regantur.  Sixthly,  by  the 
forest  law  if  an  assart  be  granted  by  the  king  at  a  justice  seat  (which 
may  be  done  without  charter)  to  another,  habendum  et  tenendum 
sibi  in  perpetuum,  he  hath  a  fee  simple  without  this  word  (heirs)  ; 
for  there  is  a  special  law  of  the  forest,  as  there  is  a  law  martial  for 
M^ars,  and  a  marine  law  for  the  seas. 

And  this  rule  of  our  author  extendeth  to  the  passing  of  estates  of 
inheritances  in  exchanges,  releases,  or  confirmations  that  inure  by 
way  of  enlargement  of  estates,  w^arranties,  bargains  and  sales  -  by 
deed  indented  and  enrolled,  and  the  like,  in  which  this  word  (heirs) 
is  also  necessary,  for  they  do  tantamount  to  a  feoffment  or  grant,  or 

1  See  Georgia  v.  Cincinnati  So.  Ry..  248  U.  S.  26. 

2  But  see  Challis,  Real  Prop.,  3(1  ed.,  223. 


SECT.    l]  ESTATES   IN    FEE   SIMPLE  185 

stand  upon  the  same  reason  that  a  feoffment  or  grant  doth;  for  like 
reason  doth  make  like  law,  ubi  eadem  ratio,  ihi  idem  jus.  And  this 
is  to  be  observed  throughout  all  these  three  books,  that  where  other 
cases  fall  within  the  same  reason,  our  author  doth  put  his  case  but 
for  example;  for  so  our  author  himself  in  another  place  explaineth 
it,  saying,  "  and  memorandum,  that  in  all  other  [such]  like  cases, 
although  it  be  not  here  expressly  moved  or  specified,  if  thoy  be  in  like 
reason,  they  are  in  the  like  law."  And  here  our  author  is  to  be 
understood  to  speak  of  heirs  when  they  are  inheritable  by  descent, 
for  they  are  capable  of  land  also  by  purchase,  and  then  the  course 
of  descent  is  sometimes  altered.  As  if  lands  of  the  nature  of  gavel- 
kind be  given  to  B.  and  his  heirs,  having  issue  divers  sons,  all  his 
sons  after  his  decease  shall  inherit ;  but  if  a  lease  for  life  be  made, 
the  remainder  to  the  right  heirs  of  B.,  and  B.  dieth,  his  eldest  son 
only  shall  inherit,  for  he  only  to  take  by  purchase  is  right  heir 
by  the  common  law.  So  note  a  diversity  between  a  purchase  and  a 
descent.  But  where  the  remainder  is  limited  to  the  right  heirs 
of  B.,  it  need  not  be  said,  and  to  their  heirs;  for  being  plurally 
limited  it  includeth  a  fee  simple,  and  yet  it  resteth  but  in  one  by 
purchase.^ 

1  See  Anderson  v.  Logan,  105  N.  C.  266  (1890).  Cf.  Cole  v.  Lake  Com- 
pany, 54  N.  H.  242.  279-290  (1874). 

As  to  determinable  fees,  see  First  Universalist  Society  v.  Boland,  155 
Mass.  171  (1892);  Gray,  Perp.  (3d  ed.)  §§  31^2. 

In  Lewis  v.  Rees,  3  K.  &  J.  132  (1856)  land  was  conveyed  by  deed  to  A 
for  life,  then  to  B  for  life,  then  to  C  and  D,  and  their  heirs,  in  trust  to 
preserve  contingent  interests,  then  over.  It  was  argued  that  the  trust  was  in- 
tended to  continue  only  during  the  lives  of  A  and  B,  that  upon  the  deaths 
of  A  and  B  the  trustees  ceased  to  have  any  legal  estate  and  that  the  persons 
entitled  under  the  limitations  over  took  legal  states.  The  court  held,  that  the 
trustees  took  a  fee,  that  their  estate  could  not  be  restricted  to  such  estate  as 
was  necessary  for  the  purposes  of  the  trust,  and  that  therefore  the  persons 
entitled  under  the  limitations  over  took  ordy  equitable  estates.  Cooper  v. 
Kynock,  L.  R.  7  Ch.  App.  398  (1872)  accord 

But  in  Newhall  v.  Wheeler,  7  Mass.  189  (1810),  where  land  had  been  con- 
veyed to  A,  B,  and  C,  selectmen  of  a  towTi,  and  their  "  successors,"  in  trust 
for  D  and  his  heirs,  the  court  held,  that  the  trustees  took  a  fee.  "  The 
legal  estate  of  the  trustees  shall  be  commensurate  with  the  equitable  estate  of 
the  cestui  que  trust,  which  in  this  case  is  a  fee  simple."  The  court  gave  no 
authorities  or  reasoning  in  .support  of  this  conclusion.  The  doctrine  of 
Newhall  v.  Wheeler  has,  however,  been  generally  followed  in  the  United 
States.  See  Angell  v.  Rosenbury,  12  Mich.  241,  266  (1864);  Kales,  Estates 
and  Future  Interests,  2d  ed.,  §§  183-193. 


186  ESTATES   TAIL  [CHAP.   V 


SECTIO]^    II 

ESTATES    TAIL 

Co.  Lit.  20  a,  b.  In  gifts  in  tail  these  words  (heirs)  are  as 
necessary,  as  in  feoffments  and  grants;  for  seeing  every  estate  tail 
was  a  fee  simple  at  the  common  law,  and  at  the  common  law  no  fee 
simple  could  be  in  feoffments  and  grants  without  these  words  (heirs), 
and  that  an  estate  in  fee  tail  is  but  a  cut  or  restrained  fee,  it  follow- 
eth,  that  in  gifts  in  a  man's  life-time  no  estate  can  be  created  with- 
out these  words  (heirs),  unless  it  be  in  case  of  frankmarriage,  as  here- 
after shall  be  showed.  And  where  Littleton  saith  (heirs),  yet  (heir) 
in  the  singular  number  in  a  special  case  may  create  an  estate  tail, 
as  appeareth  by  39  Ass.  p.  20,  hereafter  mentioned.  And  yet  if  a 
man  give  lands  to  A.  et  hceredihus  de  cor  pore  suo,  the  remainder  to 
B.  in  forma  pnvdicta,  this  is  a  good  estate  tail  to  B.  for  that  in 
forma  prcedicta  do  include  the  other.  If  a  man  letteth  lands  to  A. 
for  life,  the  remainder  to  B.  in  tail,  the  remainder  to  C.  in  forma 
prcedicta,  this  remainder  is  void  for  the  uncertainty.  But  if  the  re- 
mainder had  been,  the  remainder  to  C.  in  eadem  forma,  this  had 
been  a  good  estate  tail;  for  ide7n  semper  proximo  anfecedenti  referiur. 
If  a  man  give  lands  or  tenements  to  a  man,  et  semini  suo  or  exitihus 
vel  prolihtis  de  cor  pore  suo,  to  a  man,  and  to  his  seed,  or  to  the  issues 
or  children  of  his  body,  he  hath  but  an  estate  for  life;  for  albeit 
that  the  Statute  provideth,  that  voluntas  donatoris  secundum  for- 
mam  in  charta  doni  sui  manifeste  expressam  de  caetero  ohservetur, 
yet  that  will  and  intent  must  agree  with  the  rules  of  law.  And  of 
this  opinion  was  our  author  himself,  as  it  appeared  in  his  learned 
reading  afore-mentioned  upon  this  Statute,  where  he  holdeth,  if  a 
man  giveth  land  to  a  man  et  exitihus  de  corpore  suo  legitime  pro- 
creatis,  or  semini  suo,  he  hath  but  an  estate  for  life,  for  that  there 
wanteth  words  of  inheritance. 

These  words  [of  his  body]  are  not  so  strictly  required  but  that  they 
may  be  expressed  by  words  that  amount  to  as  much :  for  the  example 
that  the  Statute  of  W.  2  putteth  hath  not  these  words  (de  corpore) 
but  these  words  (hceredihus)  viz.  Cum  aliquis  dat  terram-  suam 
alicui  viro  et  ejus  uxori  et  hceredihus  de  ipsis  viro  et  muliere  procrea- 
tis.  If  lands  be  given  to  B.  et  hceredihus  quos  idem  B.  de  prima 
uxore  sua  legitime  procrearet,  this  is  a  good  estate  in  especial  tail 
(albeit  he  hath  no  wife  at  that  time)  without  these  words  (de  cor- 
pore). So  it  is  if  lands  be  given  to  a  man,  and  to  his  heirs  which  he 
shall  beget  of  his  wife,  or  to  a  man  et  hceredihus  de  came  sua,  or  to 
a  man  et  hceredihus  de  se.  In  all  these  cases  these  be  good  estates  in 
tail,  and  yet  these  words  de  corpore  are  omitted.^ 

1  See  Stimson,  Am.  St  Law.  §  1313:  Kales,  Estates  and  Future  Interests. 
2d  ed.,  §§  194-200;  402-411. 


SECT.    II  ]  ESTATES   TAIL  187 

Co.  Lit.  26  b.  John  de  Mandeville  by  his  wife  Roberge  had 
issue  Robert  and  Mawde.  Michael  de  Morevill  gave  certain  lands  to 
Roberge  and  to  the  heirs  of  John  Mandeville  her  late  husband  on 
her  body  begotten,  and  it  was  adjudged  that  Roberge  had  an  estate 
but  for  life,  and  the  fee  tail  vested  in  Robert  (heirs  of  the  body  of 
his  father  being  a  good  name  of  purchase),  and  that  when  he  died 
without  issue.  Mawde  the  daughter  was  tenant  in  tail  as  heir  of  the 
body  of  the  father,  per  for  mam  doni,  and  the  formedon  Avhich  she 
brought  supposed,  "  quod  post  mortem  pra'fatse  Robergiae  et  Robert i 
filii  et  hseredis  ipsius  Johannis  Mandeville  et  hsered  '  ipsius  Johannis 
de  praefatse  Robergise  per  prsefatum  Johannem  procreat'  prsefat' 
Matilda  filife  prsedict'  Johannis  de  praefata  Robergia  per  prsefatum 
Johannem  procreatse  sorori  et  hseredi  prsedicti  Roberti  descendere 
debet  per  f  ormam  donationis  prsedict '."  And  yet  in  truth  the  land 
did  not  descend  unto  her  from  Robert,  but  because  she  could  have 
no  other  wn-it  it  was  adjudged  to  be  good.  In  which  case  it  is  to  be 
observed,  that  albeit  Robert  being  heir  took  an  estate  tail  by  pur- 
chase, and  the  daughter  was  no  heir  of  his  body  at  the  time  of  the 
gift,  yet  she  recovered  the  land,  per  f ormam  doni,  by  the  name  of 
heir  of  the  body  of  her  father,  which  notwithstanding  her  brother 
was,  and  he  was  capable  at  the  time  of  the  gift;  and  therefore  when 
the  gift  was  made  she  took  nothing  but  in  expectancy,  when  she 
became  heir  per  farmam  doni. 


188  ESTATES    FOR   LIFE  [CHAP.   V 

( 

SECTION  III 

ESTATES    FOR    LIFE 

Co.  Lit.  42  a,  b.  If  a  man  grant  an  estate  to  a  woman  dum  sola 
fuit,  or  durante  viduitate,  or  qilam  diu  se  bene  gesserit,  or  to  a  man 
and  a  woman  during  the  coverture,  or  as  long  as  the  grantee  dwell  in 
such  a  house,  or  so  long  as  he  pay  x  I.  &c.,  or  until  the  grantee  be 
promoted  to  a  benefice,  or  for  any  like  uncertain  time,  which  time, 
as  Bracton  saith,  is  tempus  indeterminatum:  in  all  these  cases,  if 
it  be  of  lands  or  tenements,  the  lessee  hath  in  judgment  of  laAv  an 
estate  for  life  determinable,  if  livery  be  made ;  and  if  it  be  of  rents, 
advowsons,  or  any  other  thing  that  lie  in  grant,  he  hath  a  like 
estate  for  life  by  the  delivery  of  the  deed,  and  in  count  or  plead- 
ing he  shall  allege  the  lease,  and  conclude,  that  by  force  thereof  he 
was  seised  generally  for  term  of  his  life. 

If  a  man  make  lease  of  a  manor,  that  at  the  time  of  the  lease  made 
is  worth  XX  /.  per  annum,  to  another  until  c  /.  be  paid,  in  this  case 
because  the  annual  profits  of  the  manor  are  uncertain,  he  hath  an 
estate  for  life,  if  livery  be  made  determinable  upon  the  leA^ying  of 
the  c  /.  But  if  a  man  grant  a  rent  of  xx  I.  per  annum  until  c  I.  be 
paid,  there  he  hath  an  estate  for  five  years,  for  there  it  is  certain,  and 
depends  upon  no  uncertainty.  And  yet  in  some  cases  a  man  shall 
have  an  uncertain  interest  in  lands  or  tenements,  and  yet  neither  an 
estate  for  life,  for  years,  or  at  will.  As  if  a  man  by  his  will  in  writ- 
ing devise  his  lands  to  his  executors  for  payment  of  debts,  and  until 
his  debts  be  paid;  in  this  case  the  executors  have  but  a  chattel,  and 
an  uncertain  interest  in  the  land  until  his  debts  be  paid;  for  if  they 
should  have  it  for  their  lives,  then  by  their  death  their  estate  should 
cease,  and  the  debts  unpaid;  but  being  a  chattel,  it  shall  go  to  the 
executors  of  executors  for  the  payment  of  his  debts :  and  so  note  a 
diversity  between  a  devise  and  a  conveyance  at  the  common  law  in 
his  lifetime.  And  tenant  by  statute  merchant,  by  statute  staple,  and 
by  elegit,  have  uncertain  interests  in  lands  or  tenements,  and  yet 
they  have  but  chattels,  and  no  freehold,  whose  estates  are  created  by 
divers  Acts  of  Parliament,  whereof  more  shall  be  said  hereafter. 
And  so  have  guardians  in  chivalry  which  hold  over  for  single  or 
double  A'alue  uncertain  interests,  and  yet  but  chattels. 

If  one  grant  lands  or  tenements,  reversions,  remainders,  rents,  ad- 
vowsons, commons,  or  the  like,  and  express  or  limit  no  estate,  the 
lessee  or  grantee  (due  ceremonies  requisite  by  law  being  performed) 
hath  an  estate  for  life.  The  same  law  is  of  a  declaration  of  a  use. 
A  man  may  have  an  estate  for  term  of  life  determinable  at  will;  as 
if  the  king  doth  grant  an  office  to  one  at  will,  and  grant  a  rent  to 
him  for  the  exercise  of  his  office  for  term  of  his  life,  this  is  determin- 
able upon  the  determination  of  the  office. 


SECT.  Ill]  rosse's  case  189 

A.  tenant  in  fee  simple,  makes  a  lease  of  lands  to  B.  to  have  and 
to  hold  to  B.  for  term  of  life,  without  mentioning  for  whose  life  it 
shall  be,  it  shall  be  deemed  for  term  of  the  life  of  the  lessee,  for  it 
shall  be  taken  most  strongly  against  the  lessor,  and  as  hath  been  said 
an  estate  for  a  man's  own  life  is  higher  than  for  the  life  of  another. 
But  if  tenant  in  tail  make  such,  a  lease  without  expressing  for  whose 
life,  this  shall  be  taken  but  for  the  life  of  the  lessor,  for  two  reasons. 

First,  when  the  construction  of  any  act  is  left  to  the  law,  the  law, 
which  abhorreth  injury  and  wrong,  will  never  so  construe  it  as  it 
shall  work  a  wrong:  and  in  this  case,  if  by  construction  it  should  be 
for  the  life  of  the  lessee,  then  should  the  estate  tail  be  discontinued, 
and  a  new  reversion  gained  by  wrong :  but  if  it  be  construed  for  the 
life  of  the  tenant  in  tail,  then  no  wrong  is  wrought.  And  it  is  a  gen- 
eral rule,  that  whensoever  the  words  of  a  deed,  or  of  the  parties 
without  deed,  may  have  a  double  intendment,  and  the  one  standeth 
with  law  and  right,  and  the  other  is  wrongful  and  against  law,  the 
intendment  that  standeth  with  law  shall  be  taken. 

Secondly,  the  law  more  respecteth  a  lesser  estate  by  right,  than  a 
larger  estate  by  Avrong;  as  if  tenant  for  life  in  remainder  disseise 
tenant  for  life,  now  he  hath  a  fee  simple,  but  if  tenant  for  life  die. 
now  is  his  wrongful  estate  in  fee  by  judgment  in  law  changed  to  a 
rightful  estate  for  life. 


EOSSE'S  CASE 
5  Co.  13  a.     1598. 


Between  Peter  Rosse  and  Aldwick  in  an  Ejectione  firmce,  which 
began  Pasch.  37  Eliz.  Kot.  499,  the  case  was  such ;  a  lease  is  made  to 

A.  and  his  assigns,  habendum  to  him  during  his  life,  and  the  lives  of 

B.  and  C*  and  if  this  limitation  during  the  life  of  B.  and  C  were 
void  or  not,  was  the  question.  And  it  was  adjudged,  that  the  limita- 
tion was  good ;  for  where  it  was  objected  that  when  a  man  hath  two 
estates  in  him,  the  greater  shall  drown  the  less,  and  that  an  estate 
for  his  own  life  is  higher  than  for  the  life  of  another ;  and  therefore 
an  estate  for  his  own  life,  and  for  the  lives  of  others,  cannot  stand 
together,  —  to  that  it  was  answered  and  resolved,  that  in  the  case  at 
bar,  the  lessee  had  but  one  estate,  which  hath  this  limitation,  sril. 
during  his  life,  and  the  lives  of  two  others,  and  he  hath  but  one  free- 
hold, and  therefore  there  cannot  be  any  drowning  of  estates  in  the 
case,  but  he  hath  an  estate  of  freehold  to  continue  during  these  three 
lives,  and  the  survivor  of  them.^ 

1  See  St.  29  Cnr.  II,  c.  3,  §   12   (1677);   Stimson,  Am.  St.  Law,   §    1335; 
Warren,  Cas.  on  Wills,  p.  457. 


190 


BEESON    V.    BURTON 


[chap.  V 


BEESON  V.  BURTON 
12  C.  B.  647.     1852. 

The  names  of  John  Burton  and  twenty-eight  other  persons  claim- 
ing under  similar  circumstances,  appeared  on  the  list  of  persons 
claiming  to  be  entitled  to  vote  in  the  election  of  any  knight  of  the 
shire  for  the  southern  division  -of  the  county  of  Leicester,  and  were 
all  duly  objected  to  by  the  appellant. 

The  said  John  Burton  appeared  on  the  list  of  claimants,  as 
follows :  — 


Name  of  voter. 

Place  of  abode. 

Nature  of  qualification. 

Street,  &c.,  where  the 
property  is  situate,  &c. 

Burton,  John. 

3,  Haymarket. 

Freehold  interest  in 
building  and  land. 

On  road,  T.  Freeman's 
Common. 

John  Burton  is  a  resident  freeman  of  the  borough  of  Leicester, 
and  possessed  of  an  allotment  of  land  under  the  provisions  of  a 
private  Act  of  Parliament,  8  and  9  Vict.  c.  6,  intituled  ''An  Act  to 
repeal  so  much  of  an.  Act  for  enclosing  lands  in  or  near  the  borough 
of  Leicester,  as  relates  to  the  regulation  and  management  of  the  free- 
men's allotments,  and  to  make  other  provisions  in  lieu  thereof."  By 
this  Act,  which  was  annexed  to  and  formed  part  of  the  case,  the  resi- 
dent freemen  are  empowered  to  elect  from  their  own  body  a  certain 
number  of  deputies  to  act  for  them  in  the  regulation  and  general 
management  of  the  freemen's  allotments. 

The  8th  section  empowers  the  deputies  to  take  possession  of  the 
lands  comprised  in  the  first  schedule  of  the  Act  (of  which  lands  the 
allotment  of  the  present  claimant  forms  a  part),  and  break  up  the 
whole  or  such  parts  thereof  as  to  them  shall  seem  expedient,  and 
apportion  and  divide  the  same  when  so  broken  up  into  small  allot- 
ments, not  exceeding  five  hundred  yards  each,  among  the  resident 
freemen  desiring  to  become  occupiers  thereof,  at  an  annual  rent  to 
be  fixed  at  the  discretion  of  the  deputies,  but  not  exceeding  one 
farthing  for  every  square  yard,  nor  less  than  one  shilling  for  every 
hundred  yards;  the  allotments  to  be  held  respectively  by  each  resi- 
dent freeman  desiring  to  become  the  occupier,  and  obtaining  posses- 
sion thereof,  so  long  as  he  shall  be  willing  to  hold  the  same,  and 
shall  pay  the  annual  rent,  and  conform  to  the  orders  and  regulations 
to  be  made  from  time  to  time  by  the  said  deputies. 

By  the  15th  section,  all  the  lands  comprised  in  the  two  schedules 
of  the  Act,  are  vested  absolutely  in  the  deputies  for  the  time  being, 
in  trust  for  the  resident  freemen. 

By  the  17th  section,  the  deputies  have  power  to  dispose,  by  absolute 
sale,   or  all   or   any  part   of   the   allotment   comprised   in   the   first 


SECT.    Ill]  BEESON    V.    BURTON  191 

schedule  of  the  Act,  freed  aud  discharged  from  all  right,  claim,  and 
interest  of  the  resident  freemen,  but,  by  the  22d  section,  no  sale  is  to 
be  effected  under  the  powers  of  the  Act,  without  the  consent  of  the 
major  part  of  the  freemen  assembled  at  a  public  meeting,  to  be  con- 
vened and  conducted  in  the  manner  directed  by  this  section. 

By  the  32d  section  in  case  any  freeman  shall  be  in  arrear  of  rent 
for  his  allotment,  for  the  space  of  fourteen  days,  or  shall  not  con- 
form to  the  provisions  of  the  Act,  or  the  orders,  rules,  and  regula- 
tions to  be  made  by  the  deputies,  the  said  deputies  may  re-enter  such 
allotment,  and  by  force  evict  and  dispossess  such  freeman. 

The  claimant  has  erected  buildings  on  the  land  allotted  to  him, 
which  land  and  buildings  are  above  the  value  of  40s.  above  all 
charges. 

It  was  contended,  on  the  part  of  the  appellant,  that  the  claimant 
had  no  freehold  interest  in  his  allotment;  but  the  revising-barrister 
decided  that  he  had,  and  inserted  his  name  accordingly  on  the  list 
of  voters  for  the  parish  of  St.  Mary,  Leicester. 

The  cases  of  Thomas  Archer,  and  twenty-seven  other  persons  whose 
claims  depended  on  the  same  point,  were  consolidated  with  the  prin- 
cipal case. 

Jervis,  C  J.  It  seems  to  me  that  the  view  taken  by  the  revising- 
barrister  in  this  case  was  correct,  and  that  his  decision  must  be 
affirmed,  —  the  claimant  having  a  freehold  interest  which  entitled 
him  to  vote.  It  was  admitted  by  the  appellant's  counsel,  that  the 
possession  of  a  freehold  interest  of  an  uncertain  duration,  would 
entitle  the  party  to  a  vote :  but  it  was  insisted  that  the  estate  which 
each  allottee  under  this  Act  has,  is  not  an  estate  of  an  uncertain 
duration,  within  the  rule  laid  down  in  Co.  Lit.  42  a,  because  it 
was  determinable  by  the  deputies;  and  therefore  that  the  case  must 
be  governed  by  that  of  Davis,  app.  Waddington,  resp.,  7  M.  &  G.  37; 

8  Scott  N.  R.  807.    But,  upon  looking  at  the  8th  section  of  the  8  & 

9  Vict.  c.  6,  I  find  that  each  allottee  is  to  hold  his  allotment  "  so  long 
as  he  shall  be  willing  to  hold  the  same,  and  shall  pay  the  annual 
rent,  and  conform  to  the  orders  and  regulations  to  be  made  from 
time  to  time  by  the  said  deputies."  This  provision  is  sufficient  per  se 
to  create  a  freehold  interest.  But  it  is  said  that  the  whole  scope  of 
the  Act,  and  especially  the  power  vested  in  the  deputies,  by  §  17, 
to  sell  the  land,  with  the  consent  of  the  major  part  of  the  freemen, 
shows  that  it  was  not  intended  to  give  the  allottees  a  freehold.  If 
this  is  not  a  freehold,  what  estate  is  it?  It  clearly  is  not  an 
estate  for  years:  nor  is  it  an  estate  at  the  absolute  and  uncontrolled 
will  of  the  lessors.  It  is  suggested  that  it  is  a  sort  of  parliamentary 
estate,  floating  between  an  estate  of  freehold  and  an  estate  at  will. 
It  would  manifestly  be  very  inconvenient  so  to  hold;  and  I  do  not 
see  how  we  can  consistently  with  the  rules  of  law  hold  this  to  be 
any  other  than  an  estate  of  freehold.  It  is  plain,  according  to  the 
case  of  Davis,  app.,    Waddinf/fnn.  resp.,   that,   if  the  deputies  had 


192  BEESON    V.    BURTON  [CHAP.    V 

the  power  at  any  moment  to  turn  out  the  allottees,  their  estate  would 
have  been  a  mere  estate  at  will,  and  would  not  have  conferred  a  vote. 
But  this  is  not  an  estate  held  at  the  uncontrolled  will  of  the  grantors, 
but  at  the  will  of  strangers,  or  subject  to  the  consent  of  the  deputies 
and  the  majority  of  the  freemen,  of  whom  the  allottee  is  one.  The 
estate,  therefore,  is  held  upon  an  uncertain  event,  for,  it  is  uncertain 
whether  the  majority  will  consent  to  a  sale  or  exchange;  and  there- 
fore  the  case  falls  within  the  definition  of  an  estate  for  life  in  Co. 

•'  Lit.  42  a.  Consequently  the  claimant  had  a  freehold  interest,  in 
respect  of  which  he  was  entitled  to  be  registered. 

Maule,  J.  I  also  am  of  opinion  that  the  claimant  in  this  case  was 
rightly  held  by  the  revising  barrister  to  be  entitled  to  a  freehold  in- 
terest in  his  allotment.  It  is  well  established  that  an  estate  which 
may  last  for  a  man's  life  is,  ordinarily,  a  freehold.     An  estate  for 

^life,  determinable  on  an  event  which  is  not  in  the  power  of  the  lord 
from  whom  it  is  held,  is  a  freehold.  An  estate  determinable  on  a 
condition,  which  condition  cannot  arise  at  the  absolute  will  of  the 
lord,  is  a  freehold.  Here,  the  duration  of  the  estate  depends  upon 
the  will  of  the  tenant,  which  will  not  prevent  its  being  an  estate  of 
freehold :  but  the  estate  is  capable  of  being  determined  upon  an 
event  of  a  very  special  kind  happening,  —  on  the  resolution  of  the 
deputies  to  sell  or  exchange  the  land,  and  the  concurrence  of  the 
majority  of  the  freemen.  That  is  an  event  which  is  not  dependent 
on  the  will  of  the  lord.  There  is  not  that  arbitrary  power  of  re- 
moval which  will  prevent  the  estate  from  being  a  freehold.  It  is  as 
much  out  of  the  power  of  the  lord  to  determine  the  estate,  as  if  his 
concurrence  were  not  necessary  at  all.  His  concurrence  being  neces- 
sary, does  not  make  the  concurrence  of  the  others  less  independent 
of  him.  An  estate  which  may  last  for  the  life  of  the  grantor, 
though  determinable  under  circumstances  like  those  of  this  case, 
is  clearly  such  an  estate  as  according  to  the  older  authorities  is  an 
estate  of  freehold.  The  case  of  Davis,  app.,  Waddington,  resp., 
appears  to  have  been  well  decided.  The  party  claiming  to  vote  there, 
was  appointed  by  the  trustees  to  be  an  inmate  of  the  almshouses, 
so  long  as  they  should  think  fit  to  allow  him  to  continue  there.  It 
was  held,  quite  conformably  wdth  the  general  law,  that  that  did  not 
constitute  a  freehold  interest :  and  it  is  equally  clear  that  the  interest 
the  party  in  this  case  has  is  a  freehold. 

Williams,  J.  1  am  of  the  same  opinion.  This  is  clearly  an 
estate  of  freehold,  inasmuch  as  it  is  for  an  uncertain  interest,  which 
may  last  for  the  life  of  the  party,  and  is  not  confined  to  the  will  of 

^  the  grantors.  It  comes,  therefore,  within  the  examples  given  in  some 
of  the  older  cases. 

TALForRD,  J.,  concurred.  Decision  affirmed,  uriih  costs} 

^  See  Gilmore  v.  Hamilton,  83  Ind.  196;  Western  Transp.  Co.  of  Buffalo 
V.  Lanstng.  49  N  Y.  499;  Warner  v.  Tanner,  38  Ohio  St.  118;  Serjeant  Mann- 
ing's note  to  Davis  v.  Waddington,  7  M.  &  G.  37.  45-49;  Fernie  v.  Scott, 
L.  R   7  C    P.  202. 


SECT.    IV]  ESTATES    FOR   YEARS   AND   AT   WILL  193 


SECTION  IV 

ESTATES    FOR   YEAES    AND    AT    WILL  ^ 

Lit.  §  70.  Also,  if  a  man  make  a  deed  of  feoffment  to  another 
of  certain  lands,  and  delivereth  to  him  the  deed,  but  not  livery  of 
seisin;  in  this  case  he,  to  whom  the  deed  is  made,  may  enter  into 
the  land,  and  hold  and  occupy  it  at  the  will  of  him  which  made  the 
deed,  because  it  is  proved  by  the  words  of  the  deed,  that  it  is  his 
will  that  the  other  should  have  the  land;  but  he  which  made  the 
deed  may  put  him  out  when  it  pleaseth  him. 

Lit.  §  740.  But  where  such  lease  or  grant  is  made  to  a  man  and 
to  his  heirs  for  term  of  years,  in  this  case  the  heir  of  the  lessee  or 
the  grantee  shall  not  after  the  death  of  the  lessee  or  the  grantee  have 
that  which  is  so  let  or  granted,  because  it  is  a  chattel  real,  and  chat- 
tels reals  by  the  common  law  shall  come  to  the  executors  of  the 
grantee,  or  of  the  lessee,  and  not  to  the  heir.^ 

Co.  Lit.  §  45b.  Words  to  make  a  lease  be,  demise,  grant,  to  farm 
let,  betake;  and  whatsoever  word  amounteth  to  a  grant  may  serve 
to  make  a  lease.  In  the  king's  case  this  word  Committo  doth  amount 
sometime  to  a  grant,  as  when  he  saith  Commissimus  W.  de  B.  officium 
seneschalsioe,  &c.,  quamdiu  nobis  placuerit,  and  by  that  word  also  he 
may  make  a  lease:  and  therefore  a  fortiori  a  common. person  by  that 
word  may  do  the  same. 

"  Of  certain  years."  For  regularly  in  every  lease  for  years,  the 
term  must  have  a  certain  beginning  and  a  certain  end;  and  herewith 
agreeth  Bracton,  terminus  annorum  certus  debet  esse  et  determinatus. 
And  Littleton  is  here  to  be  understood,  first,  that  the  years  must 
be  certain  when  the  lease  is  to  take  effect  in  interest  or  possession. 
For  before  it  takes  effect  in  possession  or  interest,  it  may  depend  upon 
an  uncertainty,  viz.  upon  a  possible  contingent  before  it  begin  in  pos- 
session or  interest,  or  upon  a  limitation  or  condition  subsequent. 
Secondly,  albeit  there  appear  no  certainty  of  years  in  the  lease,  yet 
if  by  reference  to  a  certainty  it  may  be  made  certain  it  sufficeth, 
Quia  id  cerium  est  quod  certum  reddi  p&test.  For  example  of  the 
first.  If  A.,  seised  of  lands  in  fee,  grant  to  B.  that  Avhen  B.  pays  to 
A.  XX  shillings,  that  from  thenceforth  he  shall  liave  and  occupy  the 
land  for  21  years,  and  after  B.  pays  the  xx.  shillings,  this  is  a  good 
lease  for  21  years  from  thenceforth.  For  the  second,  if  A.  leaseth 
his  land  to  B.  for  so  many  years  as  B.  hath  in  the  manor  of  Dale, 
and  B.  hath  then  a  term  in  the  manor  of  Dale  for  10  years,  this  is  a 

^  For  additional  authorities  on  these  subjects  and  on  estates  from  year 
to  year,  see  the  followinfi  chapter. 

-  On  the  limitation  of  a  term  to  one  and  the  heirs  of  his  bodv,  see  Feame, 
C.  R.  460-463. 


194  ESTATES    FOR    YEARS    AND    AT    WILL  [CHAP.    V 

good  lease  by  A.  I©  H.  of  the  land  of  A.  for  10  years.  If  the  parson 
of  D.  make  a  lease  of  his  glebe  for  so  many  years  as  he  shall  be  par- 
son there,  this  cannot  be  made  certain  by  any  means,  for  nothing  is 
more  uncertain  than  the  time  of  death,  Terminus  vitce  est  incertus,  et 
licet  nihil  certius  sit  morte,  nihil  tamen  incertius  est  hora  mortis. 
But  if  he  make  a  lease  for  three  years,  and  so  from  three  years  to 
three  years,  so  long  as  he  shall  .be  parson,  this  is  a  good  lease  for  six 
years,  if  he  continue  parson  so  long,  first  for  three  years,  and  after 
that  for  three  years;  and  for  the  residue  uncertain. 

If  a  man  maketh  a  lease  to  I.  S.  for  so  many  years  as  I.  ]^.  shall 
name,  this  at  the  beginning  is  uncertain ;  but  when  I.  N.  hath  namied 
the  years,  then  it  is  a  good  lease  for  so  many  years. 

A  man  maketh  a  lease  for  21  years  if  I.  S.  live  so  long;  this  is  a 
good  lease  for  years,  and  yet  is  certain  in  uncertainty,  for  the  life 
of  I.  S.  is  uncertain.  See  many  excellent  cases  concerning  this 
matter  put  in  the  said  Case  of  the  Bishop  of  Bath  ayid  Wells.  By 
the  ancient  law  of  England,  for  many  respects  a  man  could  not 
have  made  a  lease  above  40  years  at  the  most,  for  then  it  was  said 
that  by  long  leases  many  were  prejudiced,  and  many  times  m.en  dis- 
inherited, but  that  ancient  law  is  antiquated.^ 

Co.  Lit.  55a.  It  is  regularly  true,  that  every  lease  at  will  must 
in  law  be  at  the  will  of  both  parties,  and  therefore  when  the  lease  is 
made,  to  have  and  to  hold  at  the  will  of  the  lessor,  the  law  implieth 
it  to  be  at  the  will  of  the  lessee  also ;  for  it  cannot  be  only  at  the  will 
of  the  lessor,  but  it  must  be  at  the  will  of  the  lessee  also.  And  so 
it  is  when  the  lease  is  made  to  have  and  to  hold  at  the  Avill  of  the 
lessee,  this  must  be  also  at  the  will  of  the  lessor;-  and  so  are  all  the 
books  that  seem  prima  facie  to  differ,  clearly  reconciled 

There  is  an  express  ouster,  and  implied  ouster;  an  express,  as 
when  the  lessor  cometh  upon  the  land,  and  expressly  forewarneth  the 
lessee  to  occupy  the  ground  no  longer;  an  implied,  as  if  the  lessor 
without  the  consent  of  the  lessee  enter  into  the  land  and  cut  down  a 
tree,  this  is  a  determination  of  the  will;  for  that  it  should  otherwise 
be  a  wrong  in  him,  unless  the  trees  were  excepted,  and  then  it  is  no 
determination  of  the  will,  for  then  the  act  is  lawful,  albeit  the  will 
doth  continue.  If  a  man  leaseth  a  manor  at  will  whereunto  a  com- 
mon is  appendant,  if  the  lessor  put  in  his  beasts  to  use  the  common, 
this  is  a  determinat4on  of  the  will.  The  lessor  may  by  actual  entry 
into  the  'ground  determine  his  will  in  the  absence  of  the  lessee,  but 
by  words  spoken  from  the  ground  the  will  is  not  determined  until 
the  lessee  hath  notice.  No  more  than  the  discharge  of  a  factor, 
attorney,  or  such  like,  in  their  absence,  is  sufficient  in  law  until 
they  have  notice  thereof.^ 

1  See  Stimson.  Am.  St.  Law.  §  1341. 

2  But  see  1  Tiffanv.  Real  Prop..  2d  ed.,  §  61c. 

2  2  Bl.  Com.  160,  161.  "A  fourth  species  of  estates,  defeasible  on  condi- 
tion subsequent,  are  those  held  by  statute  merchant,  and  statute  staple;  which 


SECT.  IV]     ESTATES  FOR  YEARS  AND  AT  WILL  195 

are  very  nearly  related  to  the  vivum  vadium  before  mentioned,  or  estate  held 
till  the  profits  thereof  shall  discharge  a  debt  liquidated  or  ascertained.  For 
both  the  statute  merchant  and  statute  staple  are  securities  for  money;  the  one 
entered  into  before  the  chief  magistrate  of  some  trading  town,  pursuant  to 
the  Statute  13  Edvv.  I  De  Mercatoribus,  and  thence  called  a  statute  merchant ; 
the  other  pursuant  to  the  Statute  27  Edw.  III.  c.  9^  before  the  mayor  of  the 
staple,  that  is  to  sa.y,  the  grand  mart  for  the  principal  commodities  or  manu- 
factures of  the  kingdom,  formerly  held  by  Act  of  Parliament  in  certain  trad- 
ing towns,  from  whence  this  security  is  called  a  statute  staple.  They  are 
both,  I  say,  .securities  for  debts  acknowledged  to  be  due;  and  originally  per- 
mitted only  among  traders,  for  the  benefit  of  commerce;  whereby  not  only 
the  body  of  the  debtor  may  be  imprisoned,  and  his  goods  .seized  in  satisfac- 
tion of  the  debt,  but  also  his  lands  may  be  delivered  to  the  creditor,  till  out 
of  the  rents  and  profits  of  them  the  debt  may  be  satisfied;  and,  during 
such  time  as  the  creditor  so  holds  the  lands,  he  is  tenant  by  statute  merchant 
or  statute  staple.  There  is  also  a  similar  security,  the  recognizance  in  the 
nature  of  a  statute  staple,  acknowledged  before  either  of  the  chief  justices, 
or  (out  of  term)  before  their  substitutes,  the  mayor  of  the  staple  at  West- 
minster and  the  recorder  of  London;  whereby  the  benefit  of  this  mercantile 
transaction  is  e.xtended  to  all  the  king's  subjects  in  general,  by  virtue  of  the 
Statute  23  Hen.  VIII.  c.  6,  amended  by  8  Geo.  I.  c.  25,  which  directs  such 
recognizances  to  be  enrolled  and  certified  into  chancery.  But  these  by  the 
Statute  of  Frauds,  29  Car.  II.  c.  3.  are  only  binding  upon  the  lands  in  the 
hands  of  bona  fide  purchasers,  from  the  day  of  their  enrolment,  which  is 
ordered  to  be   marked  on  the  record. 

"Another  similar  conditional  estate,  created  by  operation  of  law,  for  secur- 
ity and  satisfaction  of  debts,  is  called,  an  estate  by  elegit.  What  an  elegit 
is,  and  why  so  called,  will  be  explained  in  the  Third  Part  of  these  Commen- 
taries. At  present  I  need  only  mention  that  it  is  the  name  of  a  writ, 
founded  on  the  Statute  of  Westm.  2  (13  Edw.  I  c.  18,)  by  which,  after  a 
plaintiff  has  obtained  judgment  for  his  debt  at  law,  the  sheriff  gives  him 
possession  of  one  half  of  the  defendant's  land  and  tenements,  to  be  occupied 
and  enjoyed  until  his  debt  and  damages  are  fully  paid;  and  during  the  time 
he  so  holds  them,  he  is  called  tenant  by  elegit.  It  is  easy  to  ob.serve,  that 
this  is  also  a  mere  conditional  estate,  defeasible  as  soon  as  the  debt  is 
levied.  But  it  is  remarkable  that  the  feudal  restraints  of  alienating  lands,  and 
charging  them  with  the  debts  of  the  owner,  were  softened  much  earlier  and 
much  more  effectually  for  the  benefit  of  trade  and  commerce,  than  for  any 
other  consideration.  Before  the  Statute  of  Quia  Emptores  (18  Edw.  I.),  it  is 
generally  thought  that  the  proprietor  of  lands  was  enabled  to  alienate  no 
more  than  a  moiety  of  them:  the  Statute,  therefore,  of  Westm.  2,  permits 
only  so  much  of  them  to  be  affected  by  the  process  of  law,  as  a  man  was 
capable  of  alienating  by  his  own  deed.  But  by  the  Statute  De  Mercatoribus 
(13  Edw.  I.),  passed  the  same  year,  the  whole  of  a  man's  lands  was  liable 
to  be  pledged  in  a  statute  merchant,  for  a  debt  contracted  in  trade;  though 
one  halj  of  them  was  liable  to  be  taken  in  execution  for  any  other  debt  of 
the  owner. 

"  I  shall  conclude  what  I  had  to  remark  of  the.^e  estates  by  statute  mer- 
chant, statute  staple,  and  elegit,  with  the  observ^ation  of  Sir  Edward  Coke 
(1  Inst.  42.  43):  'These  tenants  have  uncertain  interest.s  in  lands  and  tene- 
ments, and  yet  they  have  but  chattels  and  no  freeholds;  '  (which  makes  them 
an  exception  to  the  general  rule)  '  because  though  they  may  hold  an  estate 
of  inheritance,  or  for  life,  rit  liberum  tenemcntum,  imtil  their  debt  be  paid; 
yet  it  shall  go  to  their  executors:  for  ut  is  similitudinary ;  and  though  to  re- 
cover their  estates,  they  shall  have  the  same  remedy  (by  assize)  a.s^  a  t(m- 
ant  of  the  freehold  shall  have,  yet  it  is  but  the  similitude  of  a  freehold,  and 
nullum  simile  est  idem.'    This  indeed  only  proves  them  to  be  chattel  interests, 


196  ESTATES    FOR   YEARS   AND   AT   WILL  [CPIAP.   V 

becaut<e  they  go  to  the  excutors,  which  is  inconsistent  with  the  nature  of  a 
freehold;  but  it  does  not  assign  the  reason  why  these  estates,  in  contradis- 
tinction to  other  uncertain  interests,  shall  vest  in  the  executors  of  the  tenant 
and  not  the  heir;  which  is  probably  owing  to  this:  that,  being  a  security  and 
remedy  provided  for  personal  debts  due  to  the  deceased,  to  which  debts 
the  executor  is  entitled,  the  law  has  therefore  thus  directed  their  succession; 
as  judging  it  reasonable  from  a  principle  of  natural  equity,  that  the  security 
and  remedy  should  be  vested  in  those  to  whom  the  debts  if  recovered  would 
belong.  For  upon  the  same  principle,  if  lands  be  devised  to  a  man's  executor, 
until  out  of  their  profits  the  debts  due  from  the  testator  be  discharged,  this 
interest  in  the  lands  shall  be  a  chattel  interest,  and  on  the  death  of  such 
executor  shall  go  to  his  executors  (Co.  Lit.  42) ;  because  they,  being  liable 
to  pay  the  original  testator's  debts,  so  far  as  his  assets  will  extend,  are  in 
reason  entitled  to  possess  that  fund  out  of  which  he  has  directed  them  to  be 
paid." 

See  Jemmot  v.  Cooley,  1  Lev.  170. 


CHAPTER  VI 
LANDLORD  AND  TENANT i 

SECTION  I 

THE    MAKING    OF    LEASES 

Form  of  Lease  in  Massachusetts 

111^10  JnUenturc,  made  tlie    first       day  of    September    in  the  j-ear  nineteen 
hundred  and     twenty-one, 

WITNESSETH,   that  John  Doe   oj   the    City,   County   and   State   oj   New 
York,  hereinafter   called   the    Lessor,   do   hereby    lease   unto 

Richard  Roe  of  Cambridge,  in  the  county  oj  Middlesex,  and  Common- 
wealth oj  Massachusetts,  hereinafter  called  the  Lessee,  the  build- 
ing now  numbered  13  Gloucester  Street,  in  Boston,  in  the  County  oj  Sujjolk 
and  Commonwealth  oj  Massachusetts,  with  the  land  under  and  around  the 
same,  as  customarily  used  and  enjoyed. 
To  be  used  only  for      a  private  residence. 

TO  HAVE  AND  TO  HOLD  for  the  term  of    one  year    from  noon  of  the 
first    day  of    September    in  the  year  nineteen  hundred  and     twenty-one 
unless  sooner  terminated,  as  hereinafter  provided. 

YIELDING  AND  PAYING  as  rent  the  sum  of  two  thousand  (2000) 
dollars,  yearly,  by  equal  quarterly  payments  at  the  usual  place  of  business 
of  the  Lessor  or  his  attorney  of  Five  hundred  (500)  dollars  on  the  first  day 
of  each  quarter  in  every  year  during  this  Lease,  and  at  that  rate  for  any 
part  of  a  quarter  unexpired  at  the  legal  termination  of  this  Lease,  the 
first  payment  to  be  made  on  the  first  day  of    December,  1921. 

And  the  Lessee  accepts  said  premises  as  they  now  are,  and  hereby  cove- 
nants with  the  Lessor  that  he  will,  during  this  Lease  and  for  such  further 
time  as  he  or  any  other  person  or  persons  claiming  under  him  shall  hold  the 
said  premises,  or  any  part  thereof,  pay  unto  the  Lessor  the  said  rent  as  afore- 
said (except  only  in  case  of  fire  or  other  unavoidable  casualty,  as  hereinafter''' 
mentioned),  and  will  keep  all  and  singular  the  said  premises,  including  the 
plumbing  and  other  piping,  electric  and  other  fixtures  and  glass  (admitted 
now  to  be  whole  and  in  good  order),  in  such  repair  as  the  same  are  in  at 
the  commencement  of  said  term,  or  may  be  put  in  during  the  continuance 
thereof,  reasonable  use  and  wear,  and  damage  by  fire  or  other  una\'oidable 
casualty  only  excepted;  and  will  pay  all  rates  for  the  use  of  water,  gas  and 
electricity  during  the  continuance  of  this  Lease;  and  will  not  assign  this 
Lease,  nor  underlet  the  whole  or  any  part  of  the  said  premises,  nor  make 
or  suffer  any  waste  or  any  unlawful,  improper,  or  offensive  use  thereof,  or 
any  occupation  liable  to  endanger  or  affect  any  insurance  on  said  premises, 
and  will  not  make  any  alterations  or  additions  during  the  term  aforesaid 
without  the  written  consent  of  the  Lessor;  and  will  save  the  Lessor  harmless 
from  any  claim  or  damage  arising  from  neglect  to  remove  snow  and  ice  from 
the  demised  premises  or  from  the  sidewalks  bordering  the  same;  and  that 
the  Lessor  may,  at  seasonable  times,  enter  to  view  the  premises,  or  to  make 
repairs  if  he  should  elect  to  do  so,  or  to  show  the  property  and  building  to 

^  Only  selected  topics  are  here  considered. 

197 


198  RIGHT   d.    FLOWER    V.    DARBY  [CHAP.    VI 

persons  wishing  to  lease  or  buy,  and  three  months  next  preceding  the  expira- 
tion of  the  term  will  permit  the  notice  of  "  to  let  "  or  "  for  sale  "  to  be  placed 
upon  the  front  of  said  premises,  and  remain  thereon  without  hindrance  or 
molestation.  And  that  the  Lessee  will,  at  the  expiration  of  this  Lease,  peace- 
fully yield  up  to  the  Lessor  the  premises,  and  all  erections  and  additions 
made  to  or  upon  the  same,  in  good  repair  and  condition  in  all  respects,  rea- 
sonable use  and  wear  and  damage  by  fire  and  other  unavoidable  casualties 
excepted;  and  that  the  Lessor  shall  not  be  liable  to  the  Lessee  or  any  other 
.person  for  any  injury,  loss,  or  damage  to  any  person  or  property  on  the  prem- 
ises. No  waiver,  express  or  implied,  of  any  breach  of  any  covenant  shall  ever 
be  held  or  construed  as  a  waiver  of  any  other  breach  of  the  same  covenant. 

If  the  premises,  or  any  part  thereof,  shall,  during  this  Lease,  be  de- 
stroyed or  damaged  by  fire  or  other  unavoidable  casualty,  then  this  Lease  and 
the  term  demised  shall  terminate  at  the  election  of  the  Lessor,  or  if  he  shall 
not  so  elect,  then  in  case  of  any  such  injury  to  the  premises  demised,  a  just 
proportion  of  the  rent  hereinbefore  reserved,  according  to  the  nature  and 
extent  of  the  injury  sustained  by  the  demised  premises,  shall  be  suspended 
or  abated  until  the  demised  premises,  or  what  may  remain  thereof,  shall  have 
been  put,  by  the  Lessor,  in  proper  condition  for  use  and  habitation. 

These  presents  are  upon  condition  that  in  case  of  any  breach  of  any 
covenant  to  be  observed  by  the  Lessee,  or  in  case  the  estate  hereby  created 
shall  be  taken  from  the  Lessee  by  process  of  law  or  otherwise,  the  Lessor 
may,  immediately  or  at  any  time  thereafter,  and  without  notice  or  demand, 
enter  upon  the  premises,  and  repossess  the  same  as  of  his  former  estate,  and 
upon  such  entry  this  Lease  shall  be  determined,  but  without  prejudice  to 
any  remedies  which  might  otherwise  be  used  for  arrears  of  rent,  or  preced- 
ing breach  of  covenant. 

The  covenants  herein  shall  run  with  land. 

It  is  agreed  and  understood  that,  as  this  form  of  Lease  may  be  used 
by  Lessors  and  Lessees  of  either  sex  and  for  corporations,  and  also  where 
there  are  several  Lessors  or  several  Lessees,  in  such  cases  the  masculine  and 
singular,  as  herein  used,  shall  be  instead  of  and  shall  stand  for  the  feminine 
or  neuter  gender  or  the  plural  number,  as  the  context  may  require. 

IN  WITNESS  WHEREOF,  the  said  parties  have  hereunto  and  to  an 
original  duplicate  hereof  set  their  hands  and  common  seal  the  day  and 
year  first  above  wTitten. 

John  Doe  (Seal) 

Richard  Roe 


RIGHT  d.  FLOWER  v.  DARBY  AND  BRISTOW 
1  T.  R.  159.     1786. 

Ejectment  tried  at  the  last  assizes  at  Salisbury,  before  Hotham, 
Baron,  when  a  verdict  was  found  for  the  plaintiff,  subject  to  the 
opinion  of  the  Court  of  King's  Bench  on  the  following  case :  — 

That  the  lessor  of  the  plaintiff  was  seised  in  fee  of  the  premises  in 
question.  That  on  the  11th  day  of  May,  1781,  the  defendant,  Darby, 
took  the  premises,  which  are  a  house  in  Salisbury,  and  occupied  them 
as  a  public-house  from  that  time  under  a  parol  demise  at  £10  per 
annum;  the  rent  to  commence  from  Midsummer  then  next  following. 
The  defendant.  Darby,  let  part  of  the  premises  to   the  defendant 


SECT.    l]  RIGHT   cl.    FLOWER    V.    DARBY  199 

Bristow.  That  on  the  26th  March,  1785,  the  defendant  Darby  was 
served  with  a  notice  to  quit  on  the  29th  of  September  following. 

The  question  is.  Whether  the  lessor  of  the  plaintiff  is  entitled  to 
recover  ? 

•  Lord  Mansfield,  C.  J.  When  a  lease  is  determinable  on  a  certain 
event,  or  at  a  particular  period,  no  notice  to  quit  is  necessary,  be- 
cause both  parties  are  equally  apprised  of  the  determination  of  the 
term. 

If  there  be  a  lease  for  a  year,  and  by  consent  of  both  parties  the 
tenant  continue  in  possession  afterwards,  the  law  implies  a  tacit  reno- 
vation of  the  contract.  They  are  supposed  to  have  renewed  the  old 
agreement,  which  was  to  hold  for  a  year.  But  then  it  is  necessary 
for  the  sake  of  convenience,  that,  if  either  party  should  be  inclined  to 
change  his  mind,  he  should  give  the  other  half  a  year's  notice  before 
the  expiration  of  the  next  or  any  following  year;  now  this  is  a  notice 
to  quit  in  the  middle  of  the  year,  and  therefore  not  binding,  as  it 
is  contrary  to  the  agreement. 

As  to  the  case  of  lodgings,  that  depends  on  a  particular  contract, 
and  is  an  exception  to  the  general  rule.  The  agreement  between  the 
parties  may  be  for  a  month  or  less  time,  and  there  to  be  sure  much 
shorter  notice  would  be  sufficient,  where  the  tenant  has  held  over  the 
time  agreed  upon,  than  in  the  other  case.  The  whole  question  de- 
pends upon  the  nature  of  the  first  contract. 

AsHi'RsT,  J.  There  is  no  distinction  in  reason  between  houses  and 
lands,  as  to  the  time  of  giving  notice  to  quit.  It  is  necessary  that 
both  should  be  governed  by  one  rule.  There  may  be  casesj  where  the 
same  hardship  would  be  felt  in  determining  that  the  rule  did  not 
extend  to  houses  as  well  as  lands;  as  in  the  case  of  a  lodging-house 
in  London,  being  let  to  a  tenant  at  Lady-day  to  hold  as  in  the  present 
case :  if  the  landlord  should  give  notice  to  quit  at  Michaelmas,  he 
would  by  that  means  deprive  the  lessee  of  the  most  beneficial  part  of 
the  term,  since  it  is  notorious  that  the  winter  is  by  far  the  most 
profitable  season  of  the  year  for  those  who  let  lodgings. 

BuLLER,  J.  It  is  taken  for  granted  by  the  counsel  for  the  plaintiff, 
that  the  rule  of  law,  which  construes  what  was  fbrmerly  a  tenancy 
at  will  of  lands  into  a  tenancy  from  year  to  year,  does  not  apply  to 
the  case  of  houses;  but  there  is  no  ground  for  that  distinction.  The 
reason  of  it  is,  that  the  agreement  is  a  letting  for  a  year  at  an  annual 
rent;  then  if  the  parties  consent  to  go  on  after  that  time,  it  is  a 
letting  from  year  to  year.  This  reason  extends  equally  to  the  present 
case;  an  annual  rent  is  here  reserved;  and  upon  such  a  holding  it 
has  been  determined  that  half  a  year's  nofice  to  quit  is  necessary. 
This  doctrine  was  laid  down  as  early  as  in  the  reign  of  TTenrv  the 
Eighth  (13  IT.  Vn.  lilb).''     The  moment  the  year  l)egan,  the  defend- 

1  The  following  remark  of  Serjeant  Wil'ouehbv  is  the  pa.«f=afi:e  referred  to: 
"  If  the  lessor  does  not  give  him  notice  before  the  half  year,  he  can  justify 
for  the  next  year,  and  so  from  year  to  year." 


200  DOUGAL    V.    MCCARTHY  [CHAP.   VI 

ant  had  a  right  to  hold  to  the  end  of  that  year;  therefore  there 
should  have  been  half  a  year's  notiee  to  quit  before  the  end  of  the 
term.  This  gives  rise  to  another  objection  in  this  case,  upon  the 
distinction  between  six  months  and  half  a  year.  The  case  in  the 
Year-Books  requires  half  a  year's  notice;  but  here  there  is  less  than* 
half  a  year's  notice,  and  therefore  it  is  bad  on  that  ground  also. 

Judgment  for  the  defendant.^ 


DOUGAL  V.    McCAETHY 

[1893]   1  Q.  B.  736.     1893. 
Appeal  from  the  judgment  of  Hawkins,  J.,  at  the  trial  without  a 

jury. 

The  action  was  for  two  quarters'  rent  of  premises  alleged  to  be  in 
arrear. 
.  The  facts  were,  so  far  as  material,  as  follows :  — 

By  an  agreement  made  in  February,  1891,  between  the  plaintiff 
(thereinafter  referred  to  as  "  the  landlord  ")  of  the  one  part,  and 
certain  persons,  directors  of  the  National  Press  Association,  Limited, 
of  whom  the  defendant  was  one  (thereinafter  referred  to  as  "  the 
tenants")  of  the  other  part,  the  landlord  agreed  to  let,  and  the  ten- 
ants for  themselves  and  their  assigns,  and  as  a  separate  and  personal 
agreement  each  of  them  for  himself  and  his  assigns,  agreed  to  take, 
certain  rooms  at  No.  62,  Strand,  for  one  year  commencing  on  Febru- 
ary 1,  1891,  at  the  rent  of  140/.,  payable  by  four  equal  quarterly 
payments  in  advance  on  February  14,  May  14,  August  14,  and 
November  14.  The  tenants  entered  and  occupied  the  premises  under 
such  agreement.  After  the  expiration  of  the  year  ending  February 
1,  1892,  they  remained  in  possession  of  the  premises. 

On  February  2.5,  the  plaintiff  wrote  to  the  secretary  of  the  National 
Press  Association,  asking  for  a  cheque  for  35/.  for  a  quarter's  rent 

2  See  Judd  v.  Fairs,  53  Mich.  518;  WiUiams  v.  Deriar,  31  Mo.  13;  Roberts 
V.  District  Court,  43  Nev.  332;  Montalvo  v.  Levinston,  94  N.  J.  L.  87; 
Douglass  v.  Seiferd,  18  Misc.  (N.  Y.)  188;  Patton  v.  Axlcy,  5  Jones  Law. 
(N.  C.)  440;  Lesley  v.  Randolph,  4  Rawle  (Pa.)  123;  Hall  v.  Wadsworth,  28 
Vt.  410;  Elliott  v.  Birrell,  102  S.  E.  (W.  Va.)  762.  Compare  Carlisle  v. 
Weiscopf,  237  Mass.  183. 

In  Miles  v.  Gojf,  14  M.  &  W.  72,  a  tenancy  from  year  to  year  had  com- 
menced on  the  nth  of  October.  On  the  17th  of  June,  1840,  the  tenant  was 
given  a  notice  to  quit  "  on  the  11th  of  October  now  next  ensuing,  or  such 
other  day  and  time  as  his  said  tenancy  might  expire  on."  Held,  this  was 
not  a  good  notice  for  the  year  ending  on  the  11th  of  October,  1841.  See  Doe  d. 
Bedford  v.  Kightley.  7  f.  R.  63;  Doe  d.  Williams  v.  Smith,  5  A.  &  E.  350. 
Compare  In  re  Threljall,  16  Ch.  D.  274,  281 ;  Gray  v.  Spyer,  [1921]  2  Ch.  549. 

An  express  oral  lease  from  year  to  year  is  not  void  under  the  Statute  of 
Frauds.  Legg  v.  Strudwick,  2  Salk.  414.  And  see  Swan  v.  Clark,  80  Ind. 
57;  Brown  x.  Kayser,  60  Wis.  1;  Birch  v.  Wright,  1  T.  R.  378. 


SECT.    l]  DOUGAL    V.    MCCARTHY  201 

due  on  the  1st  instant.  No  answer  was  sent  to  that  letter,  and  the 
tenants  remained  in  possession.  On  March  26  the  secretary  wrote  to 
the  plaintiif:  "I  am  instructed  by  Messrs.  McCarthy  and"  (men-, 
tioning  the  names  of  the  other  tenants)  "  to  inform  you  that  it  is 
their  intention  to  discontinue  their  present  tenancy  of  the  offices  at 
62,  Strand,  London,  at  present  occupied  by  them  for  the  purposes  of 
this  company,  and  I  am  directed  to  give  you  notice  that  they  will 
not  continue  same  beyond  the  perioc^  required  under  their  agreement. 
I  shall  of  course  be  glad  if  you  can  see  your  Avay  to  take  up  the 
premises  on  May  14,  or  even  earlier.  We  shall  of  course  give  you 
every  facility  for  the  securing  of  a  new  tenant,  and  I  am  sure  you 
will  meet  us  in  the  same  spirit."  In  answer  to  this  letter  the  plain- 
tiff's solicitors  wrote  on  March  31  as  follows:  "Mr.  Dougal  has 
handed  us  your  letter,  giving  notice  to  give  up  No.  62,  Strand,  Lon- 
don, which  notice  will  expire  on  February  1,  1893.  Our  client  will 
be  ready  to  meet  you,  if  you  have  an  assignee  of  the  premises,  or  will 
be  happy  to  consider  a  surrender  of  the  present  term,  if  other  suit- 
able terms  are  submitted.  We  are  instructed  to  ask  you  to  be  good 
enough  to  pay  us  the  quarter's  rent  due  February  1,  and  shall  be 
obliged  by  a  remittance  at  your  early  convenience. 

No  answer  was  sent  to  this  letter.  On  May  23  the  action  was 
commenced.  The  learned  judge  was  of  opinion  that  the  facts  did 
not  shew  that  there  had  been  an  agreement  for  a  tenancy  from  year 
to  year  after  February  1,  1892.  He  therefore  gave  judgment  for 
the  defendant.^ 

Lord  Esher,  M.  R.-  I  cannot  agree  with  the  decision  of  the 
learned  judge.  There  seems  to  be  no  dispute  as  to  the  facts  of  this 
case.  The  defendant  and  others  became  tenants  to  the  plaintiff  of 
certain  premises  for  a  year  ending  February  1,  1892,  under  an  agree- 
ment, which  contained  certain  terms,  amongst  others,  as  to  the 
amount  and  the  time  of  payment  of  rent.  The  year  came  to  an  end, 
and  the  tenancy  under  the  agreement  accordingly  expired  by  effluxion 
of  time.  The  tenants,  however,  remained  in  possession  of  the  prem- 
ises. The  evidence  appears  to  me  clearly  to  shew  that  the  landlord 
consented  to  their  so  renuuning  in  possession  as  tenants;  and  that  he 
treated  them  as  tenants  from  year  to  year  on  the  terms  of  the  i)re- 
vious  teiumcy,  i.  e.,  at  the  same  rent  payable  at  the  same  periods  as 
before;  for  on  February  25,  he  wrote  to  them  demanding  a  quarter's 
rent  on  that  footing.  After  that  letter  they  still  remained  in  posses- 
sion, and  on  March  26  they  wrote  him  a  letter,  tlie  effect  of  which 
I  will  deal  with  ])reRently.  1  take  it  that  the  doctrine  laid  down  by 
Lord  Mansfield  in  Elf/hf  v.  Darhji.  1  T.  IJ.  159,  is  correct.     He  there 

'  It  will  ho  obsorvrd  that  there  was  no  claim  as  for  use  and  occupation. 
The  defendant  was  willing  to  pay  as  for  use  and  occupation  up  to  May  14; 
but  the  plaintiff's  contention  was  that  a  tenancy  from  year  to  year  had  been 
created  on  the  temis  of  the  old  lease,  and  he  claimed  for  rent  accordingly. 

-  The  conrurrinp:  opinions  of  Lopef<  and  A.  L.  Smith,  L.  J.T.,  are  omitted. 


202  DOUGAL    V.    MCCARTHY  [CHAP.   VI 

said :  "  If  there  be  a  lease  for  a  year,  and,  by  consent  of  both  parties, 
the  tenant  continue  in  possession  afterwards,  the  law  implies  a  tacit 
^  renovation  of  the  contract.  They  are  supposed  to  have  renewed  the 
old  agreement,  which  was  to  hold  for  a  year."  Here  there  is  the 
landlord's  consent,  and  the  fact  that  the  tenants  remained  in  posses- 
sion after  the  letter  written  by  him.  I  take  it  that  it  would  be  a 
question  for  a  jury  in  such  a  case,  whether  there  was  the  consent  of 
both  parties  that  the  tenant  should  remain  in  possession  after  the 
termination  of  the  expired  tenancy.  If  the  tenant  under  such  cir- 
cumstances remained  in  possession  without  saying  anything,  I  should 
say  that  a  jury  ought  to  conclude  that  he  consented  to  continue  in 
possession  as  tenant.  If  the  tenant  remained  in  possession,  but  made 
some  statement  inconsistent  with  his  remaining  as  tenant  —  for  in- 
stance, if  he  said  that  the  property  belonged  to  him,  or  if  he  defied 
the  landlord  to  do  his  worst,  and  said  that  he  would  not  go  out  till 
he  was  turned  out  —  in  that  case  I  should  think  the  jury  would  say 
that  he  did  not  consent  to  remain  in  as  tenant,  and  was  a  mere 
trespasser.  I  do  not  think  that  it  is  necessary,  for  the  purposes  of 
this  case,  to  determine  the  question  whether,  if  the  tenant,  though 
consenting  to  remain  as  tenant,  nevertheless  made  some  stipulation 
inconsistent  with  the  notion  that  he  was  remaining  in  possession  as 
tenant  from  year  to  year  on  the  terms  of  the  old  lease,  that  incon- 
sistency w^ould  justify  the  jury  in  saying  that  that  which  would 
otherwise  be  the  implication  of  law  was  done  away  with.  But,  if 
after  the  expiration  of  a  lease  the  jury  find  that  by  consent  of  both 
parties  the  tenant  remained  in  possession  as  tenant,  and  nothing  was 
said  inconsistent  therewith,  the  implication  of  law  mentioned  by  Lord 
Mansfield  arises,  viz.,  that  there  is  a  tenancy  from  year  to  year  on 
the  terms  of  the  old  lease  so  far  as  they  are  consistent  with  such  a 
tenancy.  Buller,  J.  in  Right  v.  Darhy,  1  T.  R.  159,  in  effect  laid 
down  the  law  in  the  same  way  as  Lord  Mansfield.  He  said :  "  It 
is  taken  for  granted  by  the  counsel  for  the  plaintiff  that  the  rule  of 
law  whicli  construes  what  was  formerly  a  tenancy  at  will  of  lands 
into  a  tenancy  from  year  to  year,  does  not  apply  to  the  case  of 
houses;  but  there  is  no  ground  for  that  distinction.  The  reason  of 
it  is  that  the  agreement  is  a  letting  for  a  year  at  an  annual  rent; 
then,  if  the  parties  consent  to  go  on  after  that  time,  it  is  a  letting 
from  year  to  year." 

Therefore,  if  there  is  the  consent  of  both  parties  that  the  tenant 
shall  remain  in  possession  as  tenant,  and  nothing  is  said  to  rebut  that 
inference  of  law,  it  is  by  law  a  tenancy  from  year  to  year  on  the  terms 
of  the  old  tenancy,  so  far  as  applicable.  Here  there  was  evidence  to 
shew  that  the  landlord  consented  to  the  tenants  remaining  in  posses- 
sion, and  that  the  tenants  also  consented  to  remain  in  possession,  as 
tenants.  T  should  have  said  that  the  mere  fact  of  their  holding  over 
as  they  did  was  evidence  on  which  a  jury  ought  to  infer  that  they 
agreed  to  remain  in  possession  as  tenants,  for  I  do  not  think  the  jury 


SECT.    l]  PROVIDENCE    SAVINGS   BANK    V.    HALL  203 

ought  to  infer  that  they  intended  to  remain  in  possession  as  tres- 
passers. But  in  this  case  the  evidence  goes  further.  In  the  letter 
of  March  26,  the  tenants'  secretary  says  that  it  is  their  intention 
"  to  discontinue  their  present  tenancy."  The  original  tenancy  was 
over,  so  that  this  language  could  only  refer  to  a  fresh  tenancy.  Then 
he  says  that  he  is  instructed  to  give  notice  that  they  will  not  con- 
tinue the  same  beyond  the  period  required  under  their  agreement, 
and  proceeds :  "  I  shall  of  course  be  glad  if  you  can  see  your  way  to 
take  up  the  premises  on  May  14,  or  even  earlier."  What  do  the 
expressions  so  used  mean?  They  seem  to  me  to  admit  that,  if  they 
have  assented  to  a  tenancy,  such  tenancy  is  in  law  a  tenancy  from 
year  to  year,  and  to  give  notice  to  determine  such  tenancy  at  such 
period  as  it  may  be  determinable  by  law,  but  to  request  the  landlord, 
if  he  can  see  his  way  to  it,  to  take  the  premises  off  their  hands 
sooner.  Such  language  is  quite  inconsistent  with  the  notion  that 
they  had  a  right  to  put  an  end  to  the  tenancy  when  they  pleased, 
and  therefore  that  it  was  a  tenancy  at  will.  Therefore,  so  far  from 
this  letter  being  inconsistent  with  the  implication  of  law  that  they 
had  consented  to  remain  m  possession  as  tenants  from  j^ear  to  year. 
it  seems  to  me  clearly  to  admit  that  such  was  the  case. 

I  think  that  the  proper  inference  from  the  facts  is  that  they  con- 
sented to  remain  tenants,  and  did  not  attempt  to  impose  any  term 
inconsistent  with  the  tenancy  which  the  law  would  imply  from  such 
consent,  viz.,  a  tenancy  from  year  to  year  on  the  terms  of  the  old 
tenancy  so  far  as  consistent  with  a  tenancy  from  year  to  year.  I 
think  the  term  for  payment  of  rent  in  advance  was  not  inconsistent 
with  such  a  tenancy,  and  therefore  I  think  that  the  plaintiff  was  en- 
titled to  recover  the  rent  which  he  claimed.  For  these  reasons  I  think 
that  this  appeal  should  be  allowed.^ 


PROVIDENCE  COUNTY  SAVINGS  BANK  r.  HALL. 

16  R.  I.  154.     1888. 

Defendant's  petition  for  a  new  trial. 

February  18,  1888.  Dtkfee,  C.  J.  This  is  a  petition  for  a  new 
trial  of  an  action  of  assumpsit  for  the  use  and  occupation  of  a  small 
farm  with  dwelling-house  thereon  for  one  year.  The  action  was  tried 
in  the  Court  of  Common  Pleas.  It  appeared  on  the  trial  that  the  de- 
fendant entered  into  occupation  in  1877,  hiring  for  a  year  from 
April  1,  1877,  to  April  1,  1878,  at  $300  per  annum,  and  continued 
to  occupy  at  the  same  rent  until  the  year  1883-84;  tlint  on  October  1, 
1883,  he  received  written  notice  from  tlic  ])liiintifF  l):nik  to  quit  Ajiril 

1  See  Roe  d.  Jordan  v.  Ward,  1  ?T.  Rl.  97.     Compare  Il)hs  v.  liirhardson, 
9  A.  &  E.  849. 


204  PROVIDENCE    SAVINGS    BANK    V.    HALL         [CHAP.    VI 

1  1884,  but  coutinucd,  notwithstanding,  to  occupy  until  the  latter 
part  of  November,  1884,  when,  without  written  notice  to  the  bank 
he  quitted,  leaving  the  key  with  a  neighbor,  from  whom  he  got  it 
when  he  first  entered  as  tenant.  He  testified  that  about  April  1, 
1884,  he  saw  the  treasurer  of  the  bank,  who  had  charge  of  the 
letting,  and  asked  permission  to  remain  a  few  months  until  a  house 
then  building  for  him  could  be  completed,  and  that  the  treasurer 
refused  to  give  it,  saying  that  it  would  be  an  injury  to  the  bank, 
which  wanted  to  sell,  and  that  in  August  the  bank  had  a  board  set 
up  on  the  premises  witji  "  For  Sale "  painted  thereon.  He  also 
testified  that  the  farm  contained  only  about  thirteen  acres,  mostly 
poor  land;  that  he  did  not  plough  or  plant  in  1884,  because  he  ex- 
pected to  leave,  and  only  mowed  the  lawn  in  front  of  the  house, 
getting  not  over  a  quarter  of  a  ton  of  hay.  This  testimony  was  not 
contradicted.  He  had,  however,  been  accustomed  to  pay  the  taxes, 
and  to  have  the  amount  deducted  from  the  bill  for  rent.  He  paid 
the  tax  of  1884. 

The  bank  claimed  on  this  testimony  that  it  was  entitled  to  recover 
$300  rent  for  the  year  ending  April  1,  1885.  The  defendant  con- 
tended that  under  the  notice  to  quit,  his  yearly  tenancy  ended  April 
1,  1884,  and  that  he  was  not  liable  for  a  year's  rent  for  the  year 
ensuing.  He  asked  the  court  to  charge  the  jury  that  if  they  should 
find  that  the  bank  gave  the  proper  notice  to  terminate  the  letting 
April  1,  1884,  the  letting  did  then  terminate,  and  the  bank,  if  it 
did  not  afterwards  recognize  him  as  tenant  by  taking  rent  or  other- 
wise, was  absolved  from  giving  him  further  notice,  and  he  was  ab- 
solved from  giving  notice  to  the  bank  in  order  to  quit  legally;  and 
also  to  charge  that  if  the  letting  came  to  an  end  April  1,  1884,  and 
the  bank  refused  to  let  further,  there  could  be  no  yearly  letting  or 
tenancy  afterwards  until  a  new  contract  was  entered  into  either  by 
implication  or  otherwise.  The  court  refused  so  to  charge,  but  did 
charge  in  effect  that  if  the  bank  delayed  to  act  on  the  notice  to  quit 
for  an  unwarrantable  time,  it  lost  the  benefit  of  it,  and  could  only  ter- 
minate the  letting  at  the  end  of  the  going  year  by  another  notice,  and 
the  defendant  could  only  terminate  his  tenancy  in  like  manner, 
and  left  the  jury  to  determine  as  a  matter  of  fact  whether  the  bank 
did  unreasonably  delay.  The  jury  returned  a  verdict  for  the  bank 
for  a  year's  rent.  The  question  is,  whether  the  rulings  and  refusals 
to  rule  were  erroneous. 

The  purport  of  the  charge  was  that,  if  a  tenant  from  year  to 
year  holds  over  after  his  tenancy  has  been  terminated  by  notice  to 
quit,  it  is  optional  with  the  landlord  either  to  follow  up  the  notice 
by  ejectment,  or  to  waive  the  notice  and  hold  the  tenant  for  another 
year,  w^iether  the  tenant  actually  agrees  to  it  or  not.  The  charge 
is  supported  by  numerous  American  cases.  Hemphill  v.  Flynn,  2 
Pa.  St.  144;  Bacon  v.  Brown,  9  Conn.  334;  Conway  v.  Starhweafher, 
1  Denio,  113;  Schuyler  \.  Smith,  51  N.  Y.  309;  10  Amer.  Rep.  609; 


SECT.    l]  PROVIDENCE   SAVINGS   BANK    V.    HALL  205 

Witt  V.  The  Mayor,  &c.  of  New  York,  5  Robertson  X.  Y.  248;  also 
6  Eobertson  N.  Y.  441;  Noel  v.  McCrory,  7  Cold.  Teun.  623; 
Schuisler  v.  Ames,  16  Ala,  73;  Wolff e  v.  Wolff  &  Bro.,  69  Ala.  549; 
Clinton  Wire  Cloth  Co.  v.  Gardner  et  al.  99  111.  151 ;  Tolle  v.  Orth, 
75  Mich.  298.  Some  of  these  cases  are  very  strong.  Thus,  in  Con- 
iray  v.  Starl- weather,  the  tenant  held  over  fourteen  days,  having  re- 
fused to  renew  the  tenancy  before  his  term  expired;  in  Schuyler  v. 
Smith,  tenants  of  a  wharf  held  over  twenty-one  days,  while  another 
wharf  was  preparing  for  them,  they  having  given  notice  before 
their  lease  ended  that  they  should  not  continue  the  tenancy;  in 
Wolff e  V.  Wolff  &  Bro.  the  tenant  held  ten  days  after  his  term  ex- 
pired, under  notice  previously  given  that  he  could  not  quit  at  once, 
but  would  pay  a  reasonable  rent  for  the  unavoidable  occupancy; 
and  in  Clinton  Wire  Cloth  Co.  v.  Gardner  et  al.,  the  tenants  held 
over  eleven  days  under  notice  that  they  should  not  remain  without 
a  reduction  of  rent;  their  holding  over  being  in  part  the  result  of 
expectation  that  the  rent  would  be  reduced.  It  is  true  that  in  the 
cases  cited  the  tenant  was  in  for  a  definite  term;  but  so  long  as  the 
letting  is  terminated,  we  do  not  see  that  it  matters  whether  it  be 
terminated  by  effluxion  of  time  or  notice  to  quit.  In  Schuyler,  v. 
Smith  the  tenant  contended  that  the  relation  of  landlord  and  tenant 
could  only  be  created  by  agreement,  and  there  could  be  no  agreement 
Avithout  mutuality.  The  court  replied  that  the  tenant  held  over  at 
his  peril,  the  landlord  having  the  option  to  treat  him  as  trespasser 
or  tenant  for  a  year  longer  on  the  terms  of  the  prior  lease  so  far 
as  applicable,  the  tenancy  arising  by  operation  of  law  regardless  of 
the  tenant's  assent.  In  Clinton  Wire  Cloth  Co.  v.  Gardner  et  al. 
the  court  said  that  the  rule  laid  down  in  Schuyler  v.  Smith  "is  the 
one  established  by  the  current  of  American  decisions."  Hie  ground 
of  decision  is  that  when  a  tenant  holds  over  he  presumably  holds 
over  for  another  year,  if  the  prior  tenancy  was  for  one  or  more  3'ears; 
or,  if  the  time  was  shorter,  for  another  term  in  case  the  landlord 
assents;  and  he  cannot  be  permittcnl  to  overthrow  this  presumption 
by  setting  up  that  he  intended  to  hold  over  as  a  wrong-doer  and 
not  as  a  tenant;  and  the  doctrine  is  urgently  defended  on  the  ground 
that  the  tenant  being  in  possession  has  the  landlord  at  disadvantage, 
and  can  greatly  embarrass  or  defeat  his  arrangennMits  for  a  new 
letting  by  holding  over,  and  therefore  should  not  do  so  without  the 
risk  of  being  held  himself. 

The  English  cases  are  more  lenient  to  the  tenant,  and  hold  tliat  by 
holding  over  he  becomes  simply  a  tenant  at  sufferance,  and  cannot 
be  held  for  another  year  or  term  without  his  assent,  express  or 
implied,  the  question  of  assent  being  a  question  of  fact  for  the  jury. 
Jhhs  V.  Rirhardson.  0  \.  Sc  E.  ^49  \  Jones  v.  Shears.  4  A.  &•  E."832; 
Warinr/  v.  Kinf/.  8  M.  cV  W.  ."Tl.  The  English  rule  is  recognized 
in  Massachusetts  and  Missouri.  Delano  v.  Montague,  4  Cush.  42: 
Edwards  et  al.  v.  Hale  et  al.,  9  Allen,  462;  Emmons  v.  Scudder,  115 


206  PROVIDENCE   SAVINGS   BANK    V.    HALL         [CHAP.   VI 

Mass.  367;  Neumeister  v.  Palmer,  8  Mo.  App.  491.  In  Edwards  et 
at.  V.  Hale  et  al.  the  court  held  that  for  the  creation  of  a  new  ten- 
ancy "  there  must  be  a  new  contract,  either  express  or  inferable  from 
the  dealings  of  the  parties,"  and  remarked  that  Conway  v.  Stark- 
weather was  not  well  sustained  by  authority.  The  remark  could  not 
now  be  repeated  very  well. 

There  is  no  reported  decision  in  this  State  which  is  in  point.  We 
think  it  has  been  generally  sup'posed  that  where  a  tenant  holds  over 
he  is  presumed  to  become  a  tenant  for  another  year,  or,  if  the  prior 
term  was  shorter,  for  another  term,  if  the  landlord  consents.  On  the 
question  whether  the  presumption  is  rebuttable  otherwise  than  by 
proving  a  new  contract,  we  are  not  aware  that  there  is  any  prevalent 
opinion. 

We  decide,  in  accordance  with  what  we  consider  to  be  the  greater 
weight  of  American  authority,  that,  if  a  tenant  holds  over  without 
any  new  contract,  it  is  optional  with  the  landlord  to  treat  him  either 
as  a  trespasser  or  as  tenant  from  year  to  year,  in  case  the  prior  term 
was  for  a  year  or  longer;  and  if  the  prior  term  was  shorter  than  a 
year,  then  from  term  to  term,  according  to  such  shorter  term;  an 
election  to  treat  him  as  tenant,  however,  being  inferable  from  any 
unreasonable  delay  to  proceed  against  him  as  a  trespasser,  as  well  as 
from  words  or  acts  directly  recognizing  him  as  tenant.  Conway  v. 
Starkweather,  supra;  Moshler  v.  Reding  et  ah,  12  Me.  478;  Douglas 
V.  Whitaker,  32  Kans.  381. 

Of  course  if  a  tenant  remains  in  possession  for  some  particular 
time  or  purpose,  by  permission  of  the  landlord,  he  will  only  be  liable, 
unless  he  exceeds  the  permission  for  the  period  of  occupation.  And 
so,  if  the  landlord  accepts  a  surrender  of  the  premises  from  the 
tenant  holding  over,  the  tenant  will  be  liable  for  rent,  or  use  and 
occupation,  only  up  to  the  time  of  such  acceptance. 

Petition  dismissed.^ 

1  Black  V.  La  Porte,  271  F.  R.  620;  Mason  v.  Wierengo,  113  Mich.  151; 
Haynes  v.  Aldrich,  133  N.  Y.  287;  Hohhs  v.  Grand  Trunk  Ry.  Co.,  93  Vt.  392, 
accord.  Compare  Waring  v.  Louisville  &  N.  R.  Co.,  19  F.  R.  863;  Kyle  v. 
Gadsden  Co.,  200  Ala.  593;  Skaggs  v.  Elkus,  45  Cal.  154;  Dietrich  v.  O'Brien, 
122  Md.  482;  Faraci  v.  Fasnlo,  180  N.  W.  (Mich.)  497;  Rice  v.  Atkinson  Co., 
183  N.  W.  (Mich.)  762;  Hunter  v.  Frost,  47  Minn.  1  (Statute) ;  Pusey  v.  Pres- 
byterian Hospital  70  Neb.  353;  Hcrtcr  v.  Mullen,  159  N.  Y.  28;  Rourke  v. 
Eraser,  110  Atl.  (R.  I.)  377;  Greene  v.  Walsh.  112  Atl.  (R.  I.)  801;  Mayo  v. 
Claflin,  93  Vt.  76.  See  Mikesell  v.  Wade,  181  N.  W.  (Mich.)  970;  Richardson 
V.  Neblett,  122  Miss.  723;  Ancona  Printing  Co.  v.  Wel-sbach  Co.,  92  N.  J.  L. 
204;  Murrill  v.  Palmer,  164  N  C.  50;  Mitchell  v.  Hyman,  111  Atl.  (R.  I.)  369. 
Authorities  are  collected  in  2  Tiffany,  Landl.  and  Ten.  §§  209,  210;  25  L.  R. 
A.  N.  s.  855  note;  40  L.  R.  A.  n.  s.  498  note. 


SECT.    l]  DOE    fl.    THOMSON    V.    AMEY  207 

DOE  d.  THOMSON  v.  AMEY. 

12  A.  &  E.  476.     1840. 

Ejectment,  on  the  several  demises  of  Elizabeth  Thomson  and 
others,  to  recover  possession  of  a  farm  occupied  by  the  defendant. 

On  the  trial,  at  the  Cambridge  Spring  Assizes,  1839,  before 
Tindal,  C.  J.,  it  appeared  that  on  29th  July,  1835,  articles  of  agree- 
ment had  been  entered  into  between  Miss  Thomson,  the  lessor  of  the 
plaintiff,  and  the  defendant,  whereby  Miss  Thomson,  for  and  on  be- 
half of  herself  and  others,  devisees  in  trust  under  the  will  of  her 
father,  in  consideration  of  the  rent  and  covenants  thereinafter  m.en- 
tioned  to  be  paid  and  performed  by  the  defendant,  agreed  with  the 
defendant,  so  far  as  she  lawfull}^  could  or  might,  that  she  and  all 
other  necessary  parties  should  and  would  grant  a  lease  of  the  farm 
to  defendant,  excepting  out  of  the  said  lease  agreed  to  be  made  all 
trees,  mines,  &c.,  with  liberty  of  ingress  and  egress  for  the  intended 
lessors,  for  fourteen  years,  from  11th  October  then  next,  at  a  rent 
of  £346,  payable  quarterly.  And  it  was  thereby  agreed,  that  there 
should  be  contained  in  the  lease  covenants  to  repair,  the  said  "in- 
tended lessors "  finding  rough  timber ;  that  defendant  should  not 
assign  without  license;  that  defendant  should  use  the  premises  agreed 
to  be  demised  in  a  husbandlike  and  proper  manner  according  to  the 
best  system  of  husbandry  practised  in  that  part  of  the  country;  that 
defendant  should,  during  the  said  term,  scour  ditches  and  drains,  and 
make  and  renew  hedges;  that  defendant  would  not  destroy  any  trees, 
nor  grow  two  successive  crops  of  white  corn  or  grain  on  any  of  the 
arable  land  without  summer  tilting,  or  taking  a  green  fallow  crop; 
nor  sell  or  suffer  to  be  taken  off  the  premises  any  of  the  hay  or  straw 
grown,  or  manure  made  thereon,  but  should  spend  them  on  the 
premises.  And  it  was  further  agreed  that  the  lease  should  contain  a 
proviso  empowering  the  intended  lessors  to  enter  on  the  premises  as 
of  their  former  estate  in  case  defendant  should  fail  in  observing  any 
of  the  covenants  or  agreements  therein  contained ;  and  all  other  usual 
and  proper  covenants  in  leases  of  a  like  nature.  It  was  also  agreed 
that  defendant  should  execute  a  counterpart  of  the  lease,  and  defray 
the  expense  of  the  articles  of  agreement. 

The  defendant  entered  into  possession  at  the  time  fixed  for  the 
commencement  of  the  term,  and  continued  to  hold  and  pay  the  rent 
until  action  brought ;  but  no  further  lease  was  ever  made  or  executed. 

Before  the  commencement  of  the  action,  notice  of  several  breaches 
of  agreement  was  served  on  the  defendant  by  the  lessor  of  the  plaintiff. 
One  of  these,  namely,  that  defendant  had  taken  successive  crops  of 
white  corn  on  the  same  land  without  summer  tilting  or  green  fallow, 
was  satisfactorily  proved  on  the  trial,  and  the  plaintiff  had  a  verdict, 
subject  to  a  motion  for  a  nonsuit  on  the  grounds  hereafter  stated. 


208  DOE    d.    THOMSON    V.    AMEY  [CHAP.    VI 

In  the  following  tcnn,  B.  Andrews  obtainod  a  rule  nisi  in  pursu- 
ance of  the  leave  reserved. 

Lord  Denman,  C.  J.  In  this  case  the  defendant  was  \vX  into 
possession  under  an  agreement,  which  gave  the  parties  a  right  to  go 
into  equity  to  compel  the  execution  of  it  by  making  out  a  formal 
lease.  Under  such  circumstances  it  has  long  been  the  uniform 
opinion  of  Westminster  Hall,  that  the  tenant  in  possession  holds 
upon  the  terms  of  the  intended  lease.  One  of  these  terms  was,  that 
the  lessee  should  not  take  successive  crops  of  corn,  and  that  the 
lessor  should  have  power  to  re-enter  on  the  breach  of  such  agree- 
ment. This  agreement  and  proviso  apply  to  the  yearly  tenancy  of 
the  defendant.  It  has  been  argued,  that  the  terms  of  the  lease  can- 
not be  applied  to  the  parol  tenancy,  inasmuch  as  some  of  them,  such 
as  the  agreement  for  repairs,  are  not  usually  considered  as  applicable 
to  such  tenancy.  Whether  the  obligation  to  repair  can  be  enforced 
under  such  circumstances,  at  least  as  to  substantial  repairs,  may  per- 
haps be  questionable  -j^  but  at  all  events,  the  agreement  as  to  cropping 
the  land  is  one  which  is  consistent  with  a  yearly  tenancy. 

Patteson,  J.  In  Mann  v.  Lovejoy,  Ry.  &  M.  N.  P.  C.  355, 
though  the  facts  differed  from  those  of  the  present  case,  yet,  in 
principle,  the  ruling  of  Abbott,  C.  J.,  is  in  favor  of  the  plaintiff. 
It  is  said,  that  a  covenant  respecting  the  rotation  of  crops  cannot  be 
engrafted  on  a  yearly  tenancy;  hut  I  see  no  reason  why  it  should 
not.  The  tenant  in  possession  under  such  circumstances  is  bound  to 
cultivate  the  land,  as  if  he  were  going  to  continue  in  possession  as 
long  as  the  lease  itself  would  have  lasted.  It  is  argued,  that  the 
tenancy  arises  by  operation  of  law  upon  the  payment  of  rent,  and 
that  the  law  implies  no  particular  mode  of  cropping,  nor  any  con- 
dition of  re-entry.  But  the  terms  upon  which  the  tenant  holds  are 
in  truth  a  conclusion  of  law  from  the  facts  of  the  case,  and  the  terms 
of  the  articles  of  agreement ;  and  I  see  no  reason  why  a  condition  of 
re-entry  should  not  be  as  applicable  to  this  tenancy  as  the  other  terms 
expressed  in  the  articles. 

Williams,  J.  It  is  admitted,  that,  if  this  were  a  case  of  holding 
over,  the  terms  of  the  written  agreement  would  apply.  In  principle, 
there  is  no  distinction  between  that  case  and  the  case  of  a  tenant  who 
enters  and  pays  rent  upon  the  faith  of  an  executory  agreement  for  a 
lease.  Rule  discharged.^ 

1  But  see  Richardson  v.  Gifjord,  1  A.  &  E.  52. 

2  See  Hyatt  v.  Griffiths,  17  Q.  B.  505;  Martin  v.  Smith,  L.  R,  9  Exch.  50; 
Bradbury  v.  Grimble  &  Co.,  124  L.  T.  Rep.  189;  and  note  to  Doe  v.  Stratton, 
post  p.  211.     Compare  Wedd  v.  Porter,  [1916]   2  K.  B.  91. 

The  effect  of  the  equitable  doctrine  of  specific  performance  was  considered 
in  Walsh  v.  Lonsdale,  21  Ch.  D.  9,  and  in  Manchester  Brewery  Co.  v.  Coombs, 
[1901]  2  Ch.  608.    And  see  Morrison  v.  Herrick,  130  111.  631. 


SECT.    l]  BRAYTHWAYTE    V.    HITCHCOCK  209 

BRAYTHWAYTE  v.  HITCHCOCK 

10  U.  &  W.  494.     1842. 

Debt  for  rent.  The  first  count  of  the  declaration  stated  a  demise, 
on  the  26th  of  October,  1840,  from  the  plaintiff  to  William  Hitch- 
cock, of  a  messuage  and  premises,  to  hold  for  one  year  from  the  25th 
of  December  then  last,  and  so  on  from  year  to  year  if  the  plaintiff 
and  the  said  William  Hitchcock  should  respectively  please,  at  the 
annual  rent  of  £140,  payable  quarterly  on  &c. :  that,  during  the  said 
tenancy,  to  wit,  on  the  17th  July,  1841,  all  the  estate  and  interest 
of  the  said  W.  Hitchcock  in  the  said  messuage  and  premises  came 
to  and  vested  in  the  defendant,  by  assignment  from  the  said  W. 
Hitchcock :  and  alleged  as  a  breach  the  nonpayment  by  the  defend- 
ant of  £35,  a  quarter's  rent  due  at  Christmas,  1841.  There  was  also 
a  count  on  an  account  stated. 

The  defendant  pleaded,  first,  nunquam  indebitatus;  secondly  (to 
the  first  count),  a  denial  of  the  demise  to  W.  Hitchcock;  and  thirdly 
(to  the  first  count),  a  denial  that  the  estate  and  interest  of  W.  Hitch- 
cock vested  in  him  the  defendant :  on  which  issues  were  joined. 

At  the  trial  before  Lord  Ahinger,  C.  B.,  at  the  Middlesex  sittings 
after  last  term,  the  plaintiff  put  in  evidence  an  agreement,  dated 
the  17th  December,  1840,  and  signed  by  the  plaintiff  only,  whereby 
the  plaintiff  agreed  to  execute  a  lease  of  a  cottage,  &c.  to  W.  Hitch- 
cock, for  seven  years,  at  a  yearly  rent  of  £140,  payable  quarterly. 
It  was  proved  that  no  lease  had  been  executed  in  pursuance  of  the 
agreement,  but  that  W.  Hitchcock  had  entered  into  possession  of  the 
cottage  shortly  after  the  date  of  the  agreement,  and  had  paid  two 
quarters'  rent  up  to  Midsummer,  1841,  at  the  rate  of  £140  a  year. 
The  plaintiff  then  proved  a  notice  to  the  defendant  to  produce  a 
deed  of  assignment,  bearing  date  the  17th  July,  1841,  of  the  cottage, 
from  W.  Hitchcock  to  the  defendant :  and  on  its  nonproduction,  called 
a  witness,  who  produced  a  paper  which  he  said  w^as  a  true  copy  of  the 
original  assignment,  which  he  had  read  and  compared  Avith  it.  It 
was  objected  that  this  copy  could  not  be  read  in  evidence  for  want  of 
a  stamp;  but  the  Lord  Chief  Baron  overruled  the  objection,  and  the 
copy  was  read:  from  which  it  appeared,  that  by  the  deed  of  assign- 
ment, which  Avas  executed  both  by  W,  Hitchcock  and  the  defendant, 
after  reciting  the  agreement  of  the  17th  December,  1840,  and  that  no 
lease  had  been  executed  in  pursuance  thereof,  W.  Hitchcock  assigned 
to  the  defendant,  his  executors,  <S:c.,  all  the  said  agreement,  and  all 
benefit  and  advantage  thereof,  and  all  his  estate,  title,  and  interest 
therein,  to  hold  to  the  defendant,  his  executors,  &c.,  absolutely,  sub- 
ject nevertheless  to  a  proviso  for  redemption.  It  was  contended  for 
the  defendant,  that  there  was  no  sufficient  evidence  of  a  demise 
whereby  a  tenancy  from  year  to  year  Avas  created,  as  alleged  in  the 
declaration.    The  Lord  Chief  Baron  overruled  the  objection,  and  the 


210  BRAYTHWAYTE    V.    HITCHCOCK  [CHAP.    VI 

plaint  iff  had  a  verdict  for  £d^},  loavo  being  reserved  to  the  defendant 
to  move  to  enter  a  nonsuit,  if  the  (^ourt  should  be  of  opinion  that 
there  was  no  sufficient  evidence  of  the  assignment. 

LoED  Abinger,  C.  B.  I  think  the  evidence  was  sufficient  to  shew 
a  tenancy  from  year  to  year,  under  the  agreement,  which  was  duly 
executed  by  the  plaintiff;  the  cases  which  have  been  decided  on  this 
point  go  fully  that  length.  Here  there  is  the  additional  fact  of  an 
admission  under  the  defendant's  hand,  in  the  deed  of  assignment, 
that  an  agreement  for  the  lease  was  executed  by  the  plaintiff.  But 
the  plaintiff's  case  does  not  rest  solely  on  the  agreement  to  let ;  there 
is  the  fact  of  William  Hitchcock  having  been  in  the  possession  of  the 
cottage  for  more  than  a  year,  and  having  paid  two  quarters'  rent 
under  the  agreement.  William  Hitchcock  had  therefore  an  assign- 
able interest,  which  passed  to  the  defendant  under  the  deed  proved  at 
the  trial.  As  to  the  other  point,  I  think  the  provisions  of  the  Stamp 
Acts  relate  only  to  such  copies  as  are  evidence  per  se,  and  that  the 
word  "  copy  "  there  means  an  authenticated  copy,  receivable  as  evi- 
dence in  the  first  instance.  Here  the  copy  was  evidence,  only  because 
the  party  who  produced  it  had  compared  it  Avith  the  original,  and 
swore  to  the  contents  of  it,  word  for  word. 

Parke,  B.  I  am  of  the  same  opinion.  Although  the  law  is  clearly 
settled,  that  where  there  has  been  an  agreement  for  a  lease,  and  an 
occupation  without  payment  of  rent,  the  occupier  is  a  mere  tenant  at 
will;  yet  it  has  been  held  that  if  he  subsequently  pays  rent  under 
that  agreement,  he  thereby  becomes  tenant  from  year  to  year.  Pay- 
ment of  rent,  indeed,  must  be  understood  to  mean  a  payment  with 
reference  to  a  yearly  holding;  for  in  Richardson  v.  Langridge,  4 
Taunt.  128,  a  party  who  had  paid  rent  under  an  agreement  of  this 
description,  but  had  not  paid  it  with  reference  to  a  year,  or  any  ali- 
quot part  of  a  year,  was  held  nevertheless  to  be  a  tenant  at  will  only. 
In  the  present  case,  there  was  distinct  proof  of  the  payment  of  rent 
for  two  quarters  of  a  year.  There  is  the  additional  fact  of  an  occu- 
pation for  more  than  a  year;  but  in  the  case  of  Cox  v.  Bent,  5  Bing. 
185;  2  M.  &  P.  281,  where  a  party,  under  an  agreement  for  a  lease, 
had  occupied  for  more  than  a  year,  the  Court  held  that  a  tenancy 
from  year  to  year  existed,  not  on  the  ground  of  the  occupation,  but 
because  the  party  had  during  that  occupation  paid  a  half-year's  rent. 
I  think,  therefore,  the  fact  of  such  a  payment  was  the  stronger  evi- 
dence in  this  case,  and  that  William  Hitchcock  may  be  taken  to 
have  been  a  yearly  tenant.  Then,  as  to  the  question  whether  there 
has  been  a  due  assignment  of  such  his  interest,  I  think  it  is  clear 
that  there  has;  because,  although  the  deed  in  its  commencement  re- 
cites only  the  agreement,  the  operative  part  of  it  conveys  and  assigns 
"  all  that  the  hereinbefore  recited  agreement  of  the  17th  of  December, 
1840,  and  all  benefit  and  advantage  thereof,  and  all  that  and  those 
the  said  messuage  or  tenement  and  premises  at  &c.,  and  all  the  right, 
title,  interest,  property,  claim,  and  demand  whatsoever,  at  law  or  in 


SECT.    l]  DOE    d.    TILT    V.    STRATTON  211 

equity,  of  him  the  said  William  Hitchcock  in  the  said  premises," 
<&:c.  On  the  other  point,  I  quite  agree  with  my  Lord  Chief  Baron_ 
that  no  stamp  was  requisite,  inasmuch  as,  though  the  document 
might  in  form  have  been  read  as  a  copy  of  the  original,  it  was  in 
truth  read  only  as  a  memorandum  to  refresh  the  memory  of  the 
witness,  who  had  compared  it  with  the  deed. 

Gurnet,  B.,  concurred. 

RoLFK,  B.  If  we  look  to  the  context  of  the  schedule  to  the  Stamp 
Act,  it  is  evident  that  the  word  "  copy  "  is  not  used  in  the  ordinary 
sense;  for  a  high  rate  of  duty  is  first  imposed  on  copies  authenti- 
cated or  attested  for  the  security  or  use  of  any  person  being  a  party 
thereto,  or  taking  any  benefit  or  interest  immediately  under  it;  and 
afterAvards  a  lower  rate  of  interest  is  imposed,  where  the  copy  is 
made  for  the  use  of  any  other  person  not  being  a  party  thereto,  or 
taking  such  interest  or  benefit.  Rule  refused.^ 


DOE  d.  TILT  V.  STEATTON" 
4  Bing.  446.     1828. 

The  lessor  of  the  plaintiff  had  entered  into  an  agreement  to  grant 
the  defendant  a  lease  of  the  premises  described  in  the  declaration, 
for  seven  years,  to  commence  on  the  29th  of  September,  1820.  The 
lease  was  never  executed,  but  the  defendant  occupied  the  premises, 
and  paid  the  rent  which  was  to  have  been  reserved  by  the  lease.  On 
the  29th  September,  1827,  the  defendant,  having  received  no  notice 
to  quit,  refused  to  deliver  up  the  premises  to  the  lessor  of  the  plain- 
tiff, whereupon  the  present  action  was  commenced. 

At  the  trial  before  Best,  C.  J.,  Middlesex  Sittings  after  Michael- 
mas Term  last,  a  verdict  was  taken  for  the  lessor  of  the  plaintiff, 
with  liberty  for  the  defendant  to  move  to  enter  a  nonsuit,  if  the 
court  should  be  of  opinion  that  he  was  entitled  to  notice  to  quit. 

Best,  C.  J.  We  should  multiply  notices  to  quit  unnecessarily  if 
we  held  that  this  action  did  not  lie.  Within  the  seven  years  the  de- 
fendant could  not  have  been  turned  out  without  notice;  but  at  the  end 
of  the  seven  years  the  contract  itself  gives  him  sufficient  notice. 
The  point  is,  in  effect,  decided  in  Doe  d.  Bloom  field  v.  Smith,  6  East 
520,  and  Doe  d.  Oldersliaw  v.  Breach,  6  Esp.  N".  P.  0.  106. 

Park,  J.,  concurred. 

BuRROUGH,  J.  During  the  seven  years  notice  would  have  been 
necessary,  but  not  at  the  end  of  that  period. 

1  And  see  Huntington  v.  Parkhurst,  87  Mich.  38;  Lcaritt  v.  Lcavitt,  47 
N.  H.  329.  Compare  Hunt  v.  Morton,  18  111.  75;  Hall  v.  Hall.  6  Gill.  *  J. 
(Md.)  386;  Schneider  v.  Lord,  62  Mich.  141 ;  Brant  v.  Vincent,  100  Mich.  426; 
Rigcly  V.  StiUwcll  25  Mo.  570;  Den  d.  Snowhill  v.  Snowhill,  23  N.  J.  L.  447; 
Jackson  d.  Livingstone  v.  Bryan,  1  Johns.  (N.  Y.)  322. 


212  RICHARDSON    V.    LANGRIDGE  [CHAP.   VI 

Gasklkk,  J.     Notice  was  not  neccsssary  in  tins  case,  nor  does  the 
agreement  give  cue  party  any  advantage  over  the  other. 

Rule  refused.^ 


KICHARDSON  v.  LANGRIDGE 

4  Taunt.  128.     1811. 

Trespass  for  breaking  and  entering  a  stable  of  the  plaintiff,  and 
breaking  to  pieces  the  doors  and  locks,  and  tearing  down,  damaging, 
and  destroying  the  bins,  troughs,  and  mangers  of  the  plaintiff,  and 
locking  up  the  stable,  and  expelling  the  defendant  from  his  posses- 
sion. The  defendant  pleaded,  first,  Not  guilty;  secondly,  that  R. 
Crossley,  being  seised  in  fee  of  the  premises,  by  indenture  demised  to 
the  defendant,  among  other  things,  the  stable,  for  a  term  of  twenty- 
one  years  yet  unexpired,  by  virtue  whereof  the  defendant  entered 
and  was  possessed,  and  by  reason  of  such  possession  justified  the  acts 
complained  of  in  the  declaration.  The  plaintiff,  confessing  the  seisin 
of  Crossley,  and  the  lease  to  the  defendant,  replied,  that  the  defend- 
ant afterwards,  and  during  the  said  term  of  twenty-one  years,  de- 
mised to  the  plaintiff  the  said  stable  with  the  appurtenances,  to  hold 
to  the  plaintiff  during  a  certain  term,  that  is  to  say,  for  so  long  a 
time  as  they,  the  plaintiff  and  the  defendant,  should  respectively 
please,  the  plaintiff  rendering  to  the  defendant  a  certain  compensation 
between  them  in  that  behalf  agreed  upon  for  the  same,  by  virtue  of 
which  demise  the  plaintiff  entered  and  was  possessed,  until  the  de- 
fendant afterwards  and  during  the  continuance  of  the  said  term,  and 
interest  of  the  plaintiff  therein  of  his  own  wrong  committed  the  said 
several  trespasses.  The  defendant  apprehending  that  the  demise  laid 
in  the  plea  was  descriptive  of  a  holding  from  year  to  year,  instead  of 
rejoining  that  he  had  determined  his  will,  rejoined,  that  he  did  not 
demise  the  said  stable  to  the  plaintiff  in  manner  and  form  as  the 
plaintiff  had  alleged,  and  tendered  issue  thereon,  in  which  the  plain- 
tiff joined.  Upon  the  trial  of  this  cause,  at  the  Maidstone  Summer 
Assizes,  1811,  before  Lord  EUenhorough.  C.  J.,  the  evidence  was, 
that  the  defendant  having  taken  a  lease  of  a  close  of  land,  and  built 
a  shed  therein,  in  August,  1810,  let  the  same  by  parol  to  the  plain- 
tiff, who  was  a  carrier,  upon  an  agreement  made  without  any  refer- 
ence to  time,  that  the  plaintiff  should  convert  it  into  a  stable,  and 
that  the  defendant  should  have  all  the  dung  made  by  the  plaintiff's 
horses.  The  plaintiff,  after  having  for  some  time  occupied  it  in  its 
original  state,  laid  out  about  six  pounds  in  putting  up  a  rack  and 
manger,  and  converting  the  building  to  a  stable;  about  tlie  end  of 
the  following  April  the  defendant  requested  him  to  leave  the  prem- 

1  See  Coudcrt  v.  Cohn.  118  N.  Y.  309;  Doe  d.  Rigge  v.  BeU,  5  T.  R.  471; 
Doe  d.  Robimnv  v.  DohrU.  1  Q.  B.  806;  Berreij  v.  Lindley,  3  M.  &  G.  498; 
Croft  V.  Blay,  [1919]  1  Ch.  277. 


SECT.    l]  RICHARDSON    V.    LANGRIDGE  213 

ises,  and  upon  his  refusing  to  do  it  till  lie  could  suit  himself  else- 
Avhere,  the  defendant,  in  the  plaintiff's  absence,  and  Avithout  having 
given  him  any  written  notice  to  quit,  forced  open  the  door,  took  down 
the  rack  and  manger,  and  carried  it  out  of  the  stable  and  took  and 
used  the  manure  which  had  been  made  upon  the  premises  during 
the  plaintiff's  occupation  of  them,  and  Avhich  was  of  considerable 
value.  The  defendant's  counsel  contended,  that  the  evidence  proved 
a  strict  tenancy  at  will  (which,  though  it  made  good  the  defendant's 
case,  the  plaintiff  by  his  replication  himself  alleged,  and  the  defend- 
ant by  his  rejoinder  denied),  and  that  therefore  the  defendant  was 
entitled  at  any  time  to  determine  his  will,  and  to  enter  upon  the 
premises  and  resume  the  possession  Avhen  he  pleased,  without  any 
notice  to  quit.  The  counsel  for  the  plaintiff  contended  that  this 
must  be  a  yearly  holding,  or  that  at  all  events  the  defendant  having 
put  the  plaintiff  into  possession,  and  suffered  him  to  contract  an 
expense,  by  erecting  a  rack  and  manger,  could  not  countermand  the 
permission  at  his  pleasure,  upon  the  same  principle  on  which,  in  the 
case  of  Winter  v.  Brocl-wrll,  8  East,  308  it  was  held,  that  a  license 
once  executed,  if  it  be  to  a  thing  whereby  the  party  incurs  expense, 
cannot  be  revoked,  unless  the  grantor  tenders  to  the  grantee  all  the 
expense  which  he  has  incurred  in  executing  the  license.  Lord  Ellen- 
borough,  C.  J.,  thought  that  the  demise  being  so  long  as  each  party 
should  respectively  please,  warranted  the  defendant  in  putting  an 
end  to  the  holding  when  he  pleased,  and  in  evicting  the  tenant  with- 
out any  notice;  whereupon  the  plaintiff,  either  not  adverting  to  the 
terms  of  his  issue,  or  probably  fearing  that  though  he  had  literally 
proved  his  issue,  and  was  entitled  to  a  verdict  thereon,  the  defendant 
would  be  entitled  to  jiidgment  non  obstante  veredicto,  submitted  to  a 
nonsuit. 

Mansfield,  C.  J.  Winter  v.  Brochwell  has  not  the  slightest  resem- 
blance to  the  present  case.  You  must  find  some  Act  of  Parliament, 
or  some  decision  of  the  courts,  that  two  persons  cannot  agree  to 
make  a  tenancy  at  will.  But  it  is  a  maxim,  that  modus  et  conventio 
vincunt  legem.  Have  you  any  case  where  the  courts  have  declared 
that  there  must  be  a  tenancy  from  year  to  year,  the  parties  having 
expressly  agreed  that  the  holding  shall  be  so  long  as  both  parties 
please?  and  of  that  there  is  evidence  here:  you  say  that  Lord  Ellen- 
borough  was  of  opinion  that  the  evidence  did  not  prove  a  tenancy  for 
a  year:  the  nonsuit  then  must  have  proceeded  on  the  ground  that 
there  was  such  an  agreement  as  the  plaintiff  has  himself  stated. 
Here  you  speak,  all  along,  of  an  indefinite  agreement.  If  there  were 
a  general  letting  at  a  yearly  rent,  though  payable  half-yearly,  or 
quarterly,  and  though  nothing  were  said  about  the  duration  of  the 
term,  it  is  an  implied  letting  from  year  to  year.  But  if  two  parties 
agree  that  the  one  shall  let,  and  the  other  shall  hold,  so  long  as  both 
parties  please,  that  is  a  holding  at  will,  iind  there  is  nothing  to  hinder 
parties  from  making  such  an  agreement. 


214  BARLOW    V.    WAINWRIGHT  [CHAP.   VI 

Heath,  J.  I  am  of  the  same  opinion.  It  is  said  that  an  indefinite 
hiring  of  a  servant  is  an  hiring  for  a  year,  but  those  cases  do  not 
apply.  That  presumption  is  founded  upon  the  universal  custom  of 
hiring  servants  at  statute  fairs,  which  is  usually  for  a  year.  There 
is  no  custom  that  if  a  man  lets  premises  to  another  he  shall  let 
them  for  a  year. 

Chambre,  J.,  denied  the  proposition,  that  at  this  day  there  is  no 
such  thing  as  a  tenancy  at  will :  the  taking  of  the  dung  by  the  land- 
lord gave  the  tenant  no  term  in  the  premises.  Surely  the  distinction 
has  been  a  thousand  times  taken :  a  mere  general  letting  is  a  letting 
at  will :  if  the  lessor  accepts  yearly  rent,  or  rent  measured  by  any  ali- 
quot part  of  a  year,  the  courts  have  said,  that  is  evidence  of  a  taking 
for  a  year.  That  is  the  old  law,  and  I  know  not  how  it  has  ever 
come  to  be  changed.  The  courts  have  a  great  inclination  to  make 
every  tenancy  a  holding  from  year  to  year,  if  they  can  find  any 
foundation  for  it,  but  in  this  case  there  is  none  such. 

The  court  refused  the  rule} 


BAKLOW  V.  WAINWRIGHT 

22  Vt.  88.     1849, 

Assumpsit  for  the  use  and  occupation  of  a  store  in  Burlington. 
Plea,  the  general  issue,  and  trial  by  the  court,  September  Term, 
1847, —  Bennett,  J.,  presiding. 

It  appeared  on  trial,  that  the  plaintiff  was  the  owner  of  the  store 
in  question,  and  that  the  defendant,  on  the  twenty-second  day  of 
July,  1841,  hired  it  of  the  plaintiif,  by  parol  agreement,  for  the  term 
of  five  years,  commencing  from  the  first  day  of  April,  1841,  at  an 
annual  rent  of  $125.00,  one  half  payable  on  the  first  day  of  April  and 
the  residue  on  the  first  day  of  October  in  each  year ;  that  the  defend- 
ant took  possession  of  the  store,  under  that  agreement,  and  remained 
from  two  to  four  months,  one  Carlos  Wainwriglit  having  charge  of 
the  store  as  his  agent;  that  the  defendant  then  formed  a  co-partner- 
ship with  one  Alonzo  A.  WaiuAvright,  under  the  firm  of  E.  & 
A.  A.  Wainwright,  and  the  firm  occupied  the  store  for  about  two 
years,  the  rent  being  paid  from  the  funds  of  the  firm,  during  that 
time,  by  Carlos  Wainwright,  who  still  continued  to  have  charge  of 
the  store,  —  but-  there  was  no  evidence  of  any  new  agreement  having 
been  made  between  the  plaintiff  and  the  firm  of  E.  &  A.  A.  Wain- 
wright in  reference  to  the  store;  that  then  the  firm  of  E.  &  A.  A. 

1  Lyons  v.  PhiJa.  S:  Reading  Ry.  Co.,  209  Pa.  5.50;  Rich  v.  Bolton.  46 
Vt.  84  (but  compare  De  Nottbeck  v.  Chapman,  93  Vt.  378).  accord.  And 
see  Johnson  v.  Johnson,  13  R.  I.  467;  Doc  d.  Tomes  v.  Chamherlaine,  5  M. 
&  W.  14;  Davis  v.  McKinnon,  31  U.  C.  Q.  B.  564.  Compare  Wilson  v.  Riffle, 
104  S  E.  (W.  Va.)  285. 


SECT.    l]  BARLOW    V.    WAINWRIGHT  215 

"Wainwriglit  was  dissolved,  and  the  business  at  the  store  passed  again 
into  the  hands  of  the  defendant,  and  he  occupied  the  store,  without 
any  new  agreement,  at  the  same  rent,  until  the  twenty-first  or  twenty- 
second  day  of  July,  1844;  that  the  defendant  then  left  the  store,  and, 
on  the  twenty-second  day  of  July,  1844,  tendered  to  the  plaintiff  the 
possession  and  the  key,  and  paid  all  the  rent  due  to  that  day,  but 
nothing  beyond  it,  at  the  rate  of  $125  per  year;  and  that  the 
plaintiff"  then  declined  to  receive  the  possession  of  the  store,  and  it 
remained  vacant  from  that  time  until  the  twentj^-eighth  of  Novem- 
ber, 1844,  when  the  plaintiff  leased  it,  at  a  rent  of  $135.00  per  year, 
to  another  person,  who  went  into  the  possession.  It  appeared,  that 
during  all  the  time  the  store  was  occupied  as  above  stated,  the 
rent  had  been  paid  semi-ainiually,  on  the  first  days  in  April  and  Octo- 
ber in  each  year. 

Upon  these  facts  the  plaintiff  claimed  to  recover  the  rent  of  the 
store  from  the  twenty-second  day  of  July  to  the  twenty-eighth  day 
of  November,  1844,  during  which  period  the  store  had  remained 
vacant.  The  court  decided,  that  the  plaintiff  was  entitled  to  recoA'er 
the  rent  from  the  twenty-second  day  of  July  to  the  first  day  of 
October,  1844,  at  the  rate  of  $125  per  y6ar,  and  rendered  judgment 
accordingly.     Exceptions  by  defendant. 

The  opinion  of  the  court  was  delivered  by 

Bennett,  J.  It  seems  from  the  bill  of  exceptions,  that  the  defend- 
ant hired  of  the  plaintiff  his  store,  by  a  verbal  contract,  for  the 
period  of  five  years  from  the  first  of  April,  1841,  at  an  annual  rent 
of  one  hundred  and  twenty-five  dollars,  payable  semi-annually,  on 
the  first  days  of  April  and  October  in  each  year,  and  that  the  de- 
fendant went  into  possession,  under  the  parol  agreement,  and  the 
occupancy  was  continued  until  the  twenty-first  or  twenty-second  of 
July,  1844,  Avhen  the  defendant  quit  the  possession  of  the  store,  and 
offered  to  give  up  the  key  and  the  possession  to  the  plaintiff,  which 
the  plaintiff  then  declined  to  receive.  The  store  remained  vacant 
until  the  twenty-eighth  of  November,  1844,  when  the  plaintiff  leased 
it  to  another  person,  at  an  increased  rent  of  ten  dollars,  who  went 
into  possession  under  his  lease.  The  case  further  finds,  that  the 
rent  had  been  semi-annually  paid,  on  the  first  days  of  April  and 
October,  until  the  time  when  the  defendant  quit  the  possession  in 
July,  1844.  The  County  Court  held,  that  the  plaintiff  should  re- 
cover that  portion  of  the  half  year's  rent,  falling  due  the  first  of 
October,  1844,  which  had  not  been  paid;  to  which  the  defendant 
excepted. 

Though  in  the  court  below  the  plaintiff  claimed  to  recover  rent  to 
the  time,  when  he  took  possession  by  his  tenant,  that  is,  to  the 
twenty-eighth  of  November,  1844,  yet  there  is  no  exception  on  his 
part;  and  the  County  Court,  in  disallowing  the  rent  to  the  extent 
claimed,  probably  proceeded  upon  the  ground,  that  the  rent  could 
not  be  appnriionrd.  The  correctness  or  incorrectness  of  such  an 
opinion  we  are  now  called  upon  to  revise. 


216  BARLOW    V.   WAIN  WRIGHT  [CHAP.   VI 

The  only  question  now  is,  has  the  defendant  any  ground,  upon 
which  he  can  assign  error.  We  think  not.  It  is  true,  the  Kevised 
Statutes,  chap.  60,  §  21,  declare,  that  all  interests  or  estates  in  lands, 
created  without  any  instrument  in  writing,  shall  have  the  force  and 
effect  of  estates  at  will  only;  yet  we  think,  that  this  estate,  when  once 
created,  may,  like  any  other  estate  at  will,  by  subsequent  events,  be 
changed  into  a  tenancy  from  year  to  year.  In  the  case  before  us  the 
lessee  entered  into  possession,  and  the  possession  was  continued  from 
year  to  year,  until  July,  1844,  and  the  rents  semi-annually  paid  by 
the  lessee  and  accepted  by  the  landlord.  From  these  facts  a  new 
agreement  may  well  be  presumed,  and  the  estate,  which  was  origi- 
nally created  by  the  Statute  as  an  estate  onJy  at  will,  expands  into  a 
holding  from  year  to  year. 

This  is  the  settled  doctrine  of  the  English  courts,  under  their 
Statute  of  Frauds,  which  enacts,  that  all  parol  leases  of  land  shall 
have  the  force  and  effect  of  leases  or  estates  at  will  only.  See  Rigge 
V.  Bell,  5  T.  R.  471.     Clayton  v.  Blakey,  8  T.  R.  3.    Doe  v.  Weller, 

7  T.  R.  478.    Roe  v.  Rees,  2  Bl.  R.  1171.     See,  also,  2  Cow.  660,  and 

8  Cow.  227,  in  which  the  courts  of  New  York  declared  the  law  of 
that  State  to  be  the  same.  We  think  the  Avords  of  our  Statute  are 
satisfied  by  holding,  that,  in  the  first  instance,  the  estate  created 
in  the  present  case  was  an  estate  at  will,  and  only  an  estate  at 
will,  yet  that  it  should  inure,  like  other  estates  at  will,  and  have  the 
incidents  common  to  an  estate  at  will,  one  of  which  is  its  converti- 
hility  into  a  holding  from  year  to  year  by  the  payment  of  rent.  To 
go  farther,  and  hold,  that  the  estate,  created  under  the  Statute  as 
an  estate  at  will,  must  ever  remain  such,  would  be  to  go  beyond  the 
Statute,  and  evidently  contravene  its  provisions,  rather  than  obey 
them.  The  expression  in  the  Statute,  "  shall  have  the  force  and 
effect  of  estates  at  will  only,"  evidently  im'plies,  as  we  thiiik,  that 
they  should  in  every  respect  inure  as  a  lease  at  will. 

This  question  is  not  altogether  new  in  this  State.  In  the  case  of 
Hanchet  v.  Whitney,  2  Aik.  240,  it  was  held,  that  an  estate  at  will 
created,  under  the  Statute  then  in  force,  by  means  of  a  parol  lease, 
having  run  for  a  period  of  five  years,  was  converted  into  a  tenancy 
from  year  to  year.  The  provision  of  the  Statute  of  1797,  then  in 
force,  was  in  effect  the  same  as  our  present  Statute. 

We  do  not  discover,  that  the  sixth  section  of  chapter  60  of  the  Re- 
vised Statutes,  page  312,  to  which  the  court  have  been  referred,  has 
any  special  bearing  upon  the  question.  The  provision  in  that  section, 
that  any  lease  for  more  than  one  year  shall  not  be  good  and  effectual 
against  any  other  person  than  the  lessor  and  his  heirs,  unless  the 
same  has  been  acknowledged  and  recorded,  answers  to  a  like  provision 
in  the  fifth  section  of  the  Statute  of  1797.  The  provisions  of  the 
Statute  are  the  same  as  to  deeds  which  remain  unacknowledged  and 
unrecorded. 

I  am  aware,  that  in  Massachusetts,  in  the  case  of  Ellis  v.  Paige 


SECT.    l]  BARLOW    V.    WAINWRIGHT  217 

et  al.,  1  Pick.  43,  and  in  Hollis  v.  Pool,  3  Met.  551,  it  was  held,  that 
under  their  Statute  of  1793  a  person  entering  under  a  jmvoI  lease  for 
any  certain  time  shall  not,  even  after  occupation  and  payment  of 
rent,  be  treated  as  a  tenant  from  year  to  year,  but  shall  at  all  times 
be  regarded  as  a  tenant  at  will.  The  Statute  of  Massachusetts  is 
very  similar  in  its  phraseology  to  our  Statute  of  1797.  It  enacts, 
that  parol  leases  shall  have  the  effect  of  leases  or  estates  at  will  only, 
and  shall  not,  at  law  or  equity,  be  deemed  or  taken  to  have  any  other 
or  greater  force  and  effect.  Though  the  Statute  of  that  State,  as  well 
as  the  Statute  of  this  State,  is  decisive  against  the  creation  of  a  ten- 
ancy from  year  to  year  in  the  first  instance,  yet  I  do  not  see,  how  the 
reasoning  of  the  court  in  those  cases  applies  against  the  growth  of 
an  estate  at  will,  created  under  the  Statute,  into  a  tenancy  from 
year  to  year. 

It  is  true,'  the  English  Statute  of  Frauds  has  an  exception,  as  to 
leases  not  exceeding  the  term  of  three  years;  and  this  is  dwelt  upon 
by  the  court  of  Massachusetts,  as  a  reason  why  the  decisions  of  the 
courts  in  England,  under  their  Statute,  should  not  furnish  a  rule  for 
them.  T  must  confess,  that  I  do  not  see  the  force  of  the  reasoning 
of  the  court,  which  would  prevent  an  estate  at  will  from  being  turned 
into  a  tenancy  from  year  to  year  in  Massachusetts,  and  allow  it 
under  the  English  Statute.  In  the  case  of  Hanchet  v.  Whitney  it 
was  not  supposed,  that  our  Statute  of  1797  would  have  any  other  or 
greater  effect,  than  the  English  Statute,  and  that  both  alike,  in  the 
first  instance,  declared  that  the  estate  created  by  a  verbal  lease  was 
only  an  estate  at  will,  unless  it  came  within  the  exception  of  the 
English  Statute,  and  that  under  our  Statute  it  might  be  turned 
into  a  tenancy  from  year  to  year,  as  well  as  in  England.  The  court 
of  Maine,  in  the  case  of  Davis  v.  Thompson,  13  Maine,  214,  under 
a  similar  Statute,  have  followed  the  Massachusetts  cases;  but  no 
new  views  on  the  question  are  presented,  and  for  myself  I  cannot 
coincide  with  those  cases. 

It  is  said  by  Tindal,  C.  J.,  in  7  Bing.  458,  that  "  if  a  party  enters 
and  pays  rent,  a  new  agreement  may  be  presumed,"  and  that  this  is 
the  ground  of  turning  the  tenancy  into  a  holding  from  year  to  year. 
See,  also,  Cox  v.  Bent,  5  Bing.  185.  In  such  case  the  tenant  is  en- 
titled to  six  months'  notice,  ending  with  the  expiration  of  the  year; 
and  without  this  the  landlord  cannot  eject  him.  From  this  it  slionld 
follow,  that  the  defendant  could  not,  at  any  time  during  the  year, 
at  pleasure,  surrender  the  premises  against,  the  Avill  of  his  landlord, 
and  thns  excuse  himself  from  the  payment  of  accrning  rent. 

Bnt  sui)pose  we  regard  the  continuing  interest  of  the  defendant  in 
the  store  to  be  still  only  that  of  a  tenant  at  will,  does  it  follow,  that 
the  defendant  could  have  the  rigbt  at  any  time,  vifJiniif  prerious 
notice,  to  determine  his  estate,  iind  tlms  cxcnsc  himself  from  all  lia- 
bility to  accruing  rents?  And  could  he  esjjecially  do  it  in  this  case, 
at  least,  until  the  six  months'  rent,  \o  become  due  the  first  of  Octo- 


218  ELLIS    V.    PAIGE  [CHAP.   VI 

ber,  1844,  had  fully  accrued?  He  had  seen  fit  to  hold  over  after  the 
first  of  April,  1844,  and  could  he  determine  his  estate,  while  the  next 
six  months  were  running,  and  thereby  acquire  the  right  to  appor- 
tion the  six  months'  rent  then  accruing?  But  for  myself  I  do  not 
deem  it  important  to  recur  to  this  ground.  I  am  fully  satisfied  to 
treat  it  as  a  tenancy  from  year  to  year. 

It  is  no  defence  in  this  casci,  that  the  defendant  abandoned  the 
possession  of  the  store.  If  the  tenancy  remained  undetermined,  he 
is  liable  for  rent,  whether  he  in  fact  occupied  the  store,  or  not.  3 
Steph.  N.  P.  2724.  Eedpath  v.  Roberts,  3  Esp.  R.  225.  The  plain- 
tiff, however,  cannot  claim  rent  from  this  defendant  after  his  lease 
of  the  twenty-eighth  of  November,  1844;  and  the  County  Court 
limited  his  right  to  recover  rent  ending  with  the  six  months'  rent 
due  the  first  of  October,  1844,  and  this,  no  doubt,  upon  the  ground, 
that  the  plaintiff  could  not  determine  the  tenancy,  while  the  next 
six  months  were  running,  and  thus  acquire  the  right  of  apportion- 
ment. The  plaintiff  re-possessed  himself  of  the  store  by  and  through 
his  new  tenant. 

The  fact,  that  the  defendant,  after  having  been  in  possession  a  few 
months,  took  a  partner  in  the  business  carried  on  in  the  store,  cannot 
alter  the  case.  No  new  agreement  was  made,  in  relation  to  the 
occupancy  of  the  store,  with  the  plaintiff.  The  partner  of  the  de- 
fendant might  well  be  considered,  for  the  time  being,  as  in  under 
him,  at  least,  as  a  quasi  tenant.  Besides  it  appears,  that  after  about 
two  years  the  partners  dissolved  their  connection,  and  the  store  was 
again  occupied  by  the  defendant  individually. 

We  then  think,  the  court  below  were  right  in  their  view  of  the  laAV, 
and  that,  although  the  contract  was  modified,  yet  it  was  not  entirely 
destroyed,  and  should  govern  the  rights  of  the  parties,  as  to  the 
amount  of  rent,  and  the  times  when  the  same  became  payable.  See 
Schuyler  v.  Leggett,  2  Cow.  660. 

The  result  is,  the  judgment  of  the  County  Court  is  ajfirmed.^ 


ELLIS  V.  PAIGE 

1  Pick.  (Mass.),  43.     1822. 

This  was  an  action  of  trespass  guars  chiusam  f regit. 
At  the  trial  before  Wilde,  J.,  in  May  Term,  1821,  the  plaintiff  in- 
troduced evidence  tending  to  prove  that  in  April,  1819,  Paige,  as  the 

1  See  Hammon  v.  Douglas,  50  Mo.  434;  Bait.  &  0.  Ry.  Co.  v.  West,  57 
Ohio  St.  161. 

Entry  under  a  void  lease  and  payment  of  rent  at  an  annual  rate  creates 
a  tenancy  from  year  to  year.  Laughran  v.  Simth,  75  N.  Y.  205;  Peters  v. 
Holder,  40  Okl.  93;  Dumn  v.  Rothcrmel.  112  Pa.  272;  Arhenz  v.  Exley  Co., 
52  W.  Va.  476;  Arden  v.  Sullivan,  14  Q.  B.  832. 


SECT,    l]  ELLIS    V.    PAIGE  219 

agent  of  one  Bond,  leased  to  the  plaintiff  by  parol  a  parcel  of  land, 
with  a  dwelling-house  standing  thereon,  in  Ware,  for  the  term  of  one 
year,  reserving  rent ;  that  Ellis  thereupon  went  into  possession ;  and 
that  on  the  30th  of  September,  Paige  forcibly  entered  into  the 
dwelling-house,  and  with  the  aid  of  the  other  defendants,  without 
the  consent,  and  against  the  will  of  the  plaintiff,  removed  the  wife 
and  the  property  of  the  plaintiff  therefrom  into  the  highway.  The 
plaintiff  attempted  also  to  prove  that  the  door  of  the  house  was 
broken  by  Paige,  but  there  was  some  reason  to  believe  that  it  was 
first  partially  opened  by  the  wife  of  the  plaintiff',  and  that  Paige, 
taking  advantage  of  this  partial  opening,  forcibly  effected  his  en- 
trance without  any  actual  breaking.  It  appeared  that  either  on  the 
17th,  or  on  the  20th  of  September,  Paige,  as  the  agent  of  Bond, 
gave  notice  to  the  plaintiff  to  quit  the  demised  premises. 

Upon  this  evidence  the  jury  were  instructed,  that  if  they  believed 
that  the  door  of  the  house  was  found  by  Paige  Avholly  or  partly  open, 
so  that  he  entered  without  any  actual  breaking,  the  plaintiff'  was  not 
entitled  to  recover :  —  that  under  the  Statute  of  this  Commonwealth, 
this  parol  lease  for  a  year  was  to  be  considered  as  a  lease  at  will, 
and  the  will  of  the  lessor  having  been  determined  by  the  notice  to 
quit,  trespass  quare  clausam  could  not  be  maintained  by  Ellis  for 
any  entry  by  the  landlord,  or  his  agent,  subsequent  to  this  notice; 
and  though  within  a  reasonable  period  after  the  determination  of  the 
tenancy  at  will,  the  tenant  might  be  entitled  to  free  ingress  and 
egress  for  the  purpose  of  effecting  his  removal,  or,  in  other  words, 
to  reasonable  notice  to  quit,  yet  what  notice  was  reasonable,  was  a 
question  of  law :  —  and  that  the  notice  which  had  been  proved, 
whether  given  on  the  17th,  or  the  20th  of  September,  was  reasonable 
notice. 

The  jury  found  a  verdict  for  the  defendants.  If  these  instructions 
were  incorrect,  a  new  trial  was  to  be  granted. 

The  case  was  argued  at  September  Term,  1821,  and  continued  for 
advisement. 

The  opinion  of  the  court  was  delivered  at  April  Term,  1823,  at 
Northampton,  by : 

"Wilde,  J.  The  first  question  to  be  determined  is,  whether  a  parol 
lease  for  a  year  is  valid  according  to  the  terms  of  it,  or  whether  it 
is  an  estate  at  will  only. 

By  the  Statute  of  1783,  c.  37,  §  1,  it  is  enacted,  that  all  leases  by 
parol,  and  not  put  in  writing  and  signed  by  the  parties  so  making 
the  same,  shall  have  the  force  and  effect  of  leases  or  estates  at  will 
only;  and  shall  not,  either  in  law  or  equity,  be  deemed  or  taken  to 
have  any  other  or  greater  force  or  effect. 

The  language  of  the  Statute  is  plain  and  unambiguous,  and  when 
such  is  the  case,  the  will  of  the  legislature  must  be  obeyed.  That 
will  could  not  have  been  expressed  with  more  jjcrfect  clearness.  But 
it  has  been  argued  that  a  judicial  construction  has  been  given  to  an 


220  ELLIS    V.    PAIGE  [CHAP.    VI 

English  Statute  nearly  similar,  (29  Car.  2,  c.  3,)  according  to  which 
it  is  held  by  the  courts  there,  that  parol  leases  for  an  uncertain  time, 
with  the  reservation  of  an  annual  rent,  may  be  good  as  leases  from 
year  to  year,  notwithstanding  the  Statute.  And  it  is  said  that  the 
legislature  here,  in  adopting  the  same  language,  must  have  intended 
to  adopt  the  same  construction.  This  argument  would  have  weight, 
if  the  two  Statutes  were  in  all  respects  similar. 

But  there  is  an  exception  in  the  English  Statute,  in  favor  of  parol 
leases  not  exceeding  the  term  of  three  years,  which  was  adopted  here 
in  the  provincial  St.  4  W.  &  M.  The  omission  of  it  in  the  Statute 
now  in  force,  shows  plainly  the  intent  of  the  legislature,  to  place  all 
parol  leases  on  the  same  footing. 

It  is  a  well  settled  rule,  that  when  any  Statute  is  revised,  or  one 
Act  framed  from  another,  some  parts  being  omitted,  the  parts  omitted 
are  not  to  be  revived  by  construction,  but  are  to  be  considered  as 
annulled.  To  hold  otherwise  would  be  to  impute  to  the  legislature 
gross  carelessness  or  ignorance;  which  is  altogether  inadmissible. 
We  are  not  therefore  at  liberty  to  suppose  that  the  proviso  or  excep- 
tion in  the  provincial  Statute  was  omitted  by  mistake ;  and  if  not,  then 
clearly  it  was  the  intention  of  the  legislature,  to  place  all  parol  de- 
mises on  the  same  footing;  for  such  is  the  obvious  import  of  the 
language  of  the  Statute  of  Frauds. 

That  the  doctrine  as  to  tenancies  from  year  to  year,  depends  upon 
the  exception  in  the  English  Statute,  appears  to  me  very  clear,  al- 
though but  little  is  to  be  found  in  the  books  on  this  point.  In  the 
case  of  Legg  v.  Strudivick ,  1  Salk.  414,  it  was  decided  that  a  parol 
demise  habendum  de  anno  in  annum,  et  sic  ultra,  quamdiu  amhahus 
partibus  placeref,  was  a  lease  for  two  years,  and  from  year  to  year 
after;  so  that  if  the  tenant  holds  on  after  the  two  years,  he  is  not 
tenant  at  will,  but  for  a  year  certain. 

The  court  say,  "  that  his  holding  on  after  the  two  years  must  be 
taken  to  be  an  agreement  to  the  original  contract,  and  in  execution  of 
it.  And  such  an  executory  contract,"  they  say,  "  is  not  void  by  the 
Statute  of  Frauds,  though  it  be  for  more  than  three  years;  because 
there  is  no  term  for  above  two  years  ever  subsisting  at  the  same 
time."  The  plain  inference  is,  that  but  for  the  exception  in  the  Stat- 
ute, the  lease  in  that  case  would  have  been  held  a  lease  at  will  only. 
The  doctrine,  as  to  tenancies  from  year  to  year,  was  introduced  long 
before  the  Statute  of  Frauds.  In  the  case  of  Doe  v.  Porter,  3  D.  & 
E.  16,  Lord  Kenyon  says,  "  The  tenancy  from  year  to  year  succeeded 
to  the  old  tenancy  at  will,  which  was  attended  with  many  incon- 
veniences. And  in  order  to  obviate  them,  the  courts  very  early  raised 
an  implied  contract  for  a  year,  and  added,  that  the  tenant  could  not 
be  removed  at  the  end  of  the  year  without  receiving  six  months'  pre- 
vious notice."  At  first  a  lease  without  limitation  of  time,  and  with 
the  reservation  of  an  annual  rent,  was  considered  as  a  lease  for  a 
year  certain.    This  was  better  than  the  old  tenancy  at  will,  but  still 


SECT,    l]  ELLIS    V.    PAIGE  221 

inconvenient,  because  the  tenant  might  be  compelled  to  quit  at  the 
end  of  the  year  without  notice.  Timmins  v.  Rowlinson,  1  W.  Bl. 
533;  s.  c.  3  Burr,  1609.  Then  followed  tenancies  from  year  to  year, 
which  were  found  most  inconvenient,  as  the  estate  could  not  be  sud- 
denly determined,  nor  without  six  months'  notice  to  quit.  Thus  stood 
the  law  at  the  time  the  English  Statute  of  Frauds  was  penned,  and 
the  exception  was  introduced,  no  doubt,  for  the  purpose  of  support- 
ing short  parol  leases,  and  tenancies  from  year  to  year  depending  on 
implied  contracts.  But  whether  this  be  so  or  not,  it  is  very  clear,  that 
the  English  doctrine  respecting  tenancies  from  year  to  year  can 
only  be  supported  by  the  exception  in  the  Statute,  and  that  by  our 
Statute  there  can  be  no  tenancy  from  year  to  year,  unless  by  a 
lease  in  writing.  But  the  case  under  consideration,  is  not  a  case  of 
tenancy  from  year  to  year,  even  according  to  the  English  doctrine. 
It  is  a  case  of  a  parol  demise  for  a  year  certain;  and  in  England,  and 
in  JNTew  York,  where  the  law  is  the  same,  such  a  parol  demise  Avould 
be  valid.  If  the  tenant  should  hold  over  after  the  year,  he  would 
then  be  tenant  from  year  to  year,  and  would  be  entitled  to  notice. 

If  there  be  a  lease  for  a  year,  and  by  consent  of  both  parties,  the 
tenant  continues  in  possession  afterwards,  the  law  implies  a  tacit 
renovation  of  the  contract.  The  plaintiff  therefore  would  not  by  the 
law  of  England  be  entitled  to  notice  to  quit. 

Where  a  lease  is  determinable  at  a  certain  time,  no  notice  to  quit 
is  necessary;  because,  says  Lord  Mansfield,  both  parties  are  equally 
apprised  of  the  determination  of  the  term.  Messenger  v.  Armstrong, 
1  T).  &  E.  54;  Bright  v.  Darby,,  1  D.  &  E.  162.  All  that  is  said 
therefore  about  tenancies  from  year  to  year,  and  the  necessity  of  a 
notice  to  quit  in  every  such  tenancy,  is  not  applicable  to  the  present 
case. 

2.  The  next  question  to  be  considered,  is,  whether  a  tenant  at  Avill 
is  entitled  to  notice  to  quit. 

I  hold  that  he  is  not ;  and  this  is  the  principal  objection  to  a  ten- 
ancy at  Avill.  ISTotice  to  quit  is  frequently  given,  and  is  one  way  of 
determining  the  lease;  but  not  the  only  one.  It  may  be  determined 
by  the  entry  of  the  lessor  on  the  land,  and  his  exercising  any  act  of 
ownership  inconsistent  with  the  nature  of  the  estate;  or  by  the 
death  or  outlawry  of  either  landlord  or  tenant.  And  either  party 
may  determine  the  estate  whenever  he  pleases. 

This  is  clearly  the  law,  notwithstanding  the  case  of  Parker  v.  Con- 
stable, 3  Wils.  25,  which  is  a  short  and  imperfect  report.  I  presume 
that  was  a  tenancy  from  year  to  year :  for  at  the  time  it  was  decided 
(10  Geo.  3),  the  old  tenancy  at  will  had  in  England  become  obsolete. 
It  existed  only  notionally,  as  Wilmot,  J.,  said  long  before.  If  this  is 
not  a  satisfactory  explanation  of  that  case,  it  is  sufficient  to  add, 
that  it  is  opposed  to  the  whole  current  of  the  authorities.  In  the  case 
of  PhiUips  V.  rorrrt.  7  Johns.  Rep.  1.  Kent,  C.  J.,  says,  "that  ten- 
ancies at  will  are  held  to  be  estates  from  year  to  year,  merely  for  the 


222  ELLIS    V.    PAIGE  [CHAP.   VI 

sake  of  a  notice  to  quit ;  as  to  every  other  purpose  they  are  regarded 
as  mere  tenancies  at  will."  And  with  this  agree  all  the  dicta  of  the 
English  judges.  Thompson,  J.,  says  that  it  has  been  settled  in  New 
York,  that  notice  to  quit  is  not  necessary  to  a  tenant  at  will.  Jack- 
son V.  Bryan,  1  Johns.  Eep.  323.  And  Spencer,  J.,  says,  that  whether 
notice  to  quit  in  that  case  was  necessary,  depended  on  the  question, 
whether  the  estate  was  a  tenancy  at  will,  or  for  years.  Tomkins,  J., 
it  is  true  inclined  to  the  opinion,  that  a  tenant  at  will  is  entitled  to 
notice  to  quit;  and  he  relies  on  the  case  of  Parker  v.  Constable,  which 
he  says  he  did  not  find  had  been  overruled.  And  it  ought  not  to  be, 
if  it  is  to  be  understood  as  I  have  supposed  it  might  be.  He  refers 
also  to  the  case  of  Rigge  v.  Bell,  5  D.  &  E.  471 ;  but  that  case  will 
not  warrant  the  conclusion  he  seems  to  draw  from  it.  IN^otice  to 
quit  was  not  held  necessary  in  that  case  on  the  ground  that  the  de- 
fendant was  tenant  at  will,  but  because  by  the  terms  of  the  lease  he 
was  to  hold  for  a  time  certain.  It  was  a  case  of  a  parol  demise  for 
the  term  of  seven  years,  which  the  court  held  void  by  the  Statute  of 
Frauds,  as  to  the  duration  of  the  lease,  but  good  as  to  the  other 
terms  of  it.  One  of  these  terms  was,  that  the  defendant  should  quit 
at  Candlemas,  and  the  court  decided,  that  if  the  lessor  chose  to  deter- 
mine the  tenancy  before  the  expiration  of  the  seven  years,  he  could 
only  put  an  end  to  it  at  Candlemas.  This  was  the  only  point  de- 
cided in  that  case.  In  the  case  of  Jackson  v.  Laughhead,  2  Johns. 
Rep.  75,  it  was  decided  by  a  majority  of  the  court,  against  "the 
opinion  of  Thompson,  J.,  that  in  ejectment  against  a  mortgagor, 
notice  to  quit  was  necessary.  This  Avas  never  held  to  be  law  in  this 
State;  nor  is  it  the  law  of  England. 

Lord  Mansfield  says,  in  the  case  of  Keech  v.  Hall,  Doug.  21,  that 
"when  the  mortgagor  is  left  in  possession,  the  true  inference  to  be 
drawn,  is,  an  agreement  that  he  shall  possess  the  premises  at  will 
in  the  strictest  sense,  and  therefore  no  notice  is  ever  given  him  to 
quit."  The  same  doctrine  is  laid  down  by  Lord  Ellenborough  in  the 
case  of  Thunder  v.  Belcher,  3  East,  449;  and  such  I  think  is  un- 
questionably the  law.  A  mortgagor  is  not  entitled  to  emblements, 
much  less  to  six  months'  notice  to  quit. 

It  appears,  therefore,  from  a  review  of  all  the  authorities,  that  an 
estate  at  will  may  be  determined  without  previous  notice;  that  the 
inconvenience  arising  from  this  principle  of  the  common  law,  led 
in  England  to  the  introduction  of  the  tenancy  from  year  to  year; 
and  that  notice  to  quit,  as  practised  there,  is  required  only  in  relation 
to  the  latter  estate. 

3.  The  question  then  is,  whether,  when  an  estate  is  determined  by 
the  lessor,  the  lessee  is  obliged  immediately  to  quit,  or  may  be 
forcibly  expelled. 

We  are  all  of  opinion  that  the  law  does  not  impose  on  the  lessee 
these  hard  terms. 

The  lessee  is  entitled  to  the  emblements,  and  a  reasonable  time  is 


SECT.    I]  ELLIS    V.    PAIGE  223 

allowed  to  liim  for  the  purpose  of  removing  his  family,  furniture, 
and  other  property.  If  the  lessor  disturbs  him  in  the  exercise  of 
this  right,  an  action  will  lie  for  the  lessee.  This  principle  was 
recognized  in  the  case  of  Rising  v.  Stannard,  17  Mass.  Rep.  287, 
and  is  well  established.  A  contrary  doctrine  would  be  extremely 
harsh  and  unreasonable. 

4.  Nothing  further  then  remains  to  be  considered,  except  the  ques- 
tion, whether  there  was,  in  this  case,  sufficient  and  reasonable  time 
allowed  the  tenant  to  remove :  and  this  we  have  found  to  be  a  ques- 
tion of  no  small  difficulty.  There  being  no  rule  established,  each  case 
must  depend  on  its  own  peculiar  circumstances.  This,  to  say  the 
least  of  it,  is  inconvenient.  No  right  which  is  capable  of  being  de- 
fined and  limited,  ought  ever  to  depend  on  the  discretion  of  the 
judges;  the  exercise  of  which  necessarily  leads  to  uncertainty,  which 
is  commonly  productive  of  more  difficulty  than  even  the  operation 
of  a  bad  rule.  It  is  for  this  reason  that  the  court  adopts  rules  of 
practice,  instead  of  exercising  its  discretion  in  each  particular  case. 

We  shall  hereafter  probably  find  it  necessary  to  frame  some  rule 
applicable  to  cases  of  this  sort ;  should  we  not  be  prevented  by  the 
intervention  of  the  legislature,  whose  unlimited  power  to  change  and 
modify  the  law  would  .enable  them  most  effectually  to  provide  a 
remedy  for  existing  inconveniences  and  difficulties.  These  probably 
were  not  foreseen  when  the  provincial  Statute  was  revised ;  and 
perhaps  the  operation  of  the  exception  or  proviso  in  that  Statute  was 
not  well  understood  or  considered.  At  that  time  the  doctrine  of 
leases  and  tenancies  at  will  was  not  familiar  in  practice,  and  the 
exception  itself  is  somewhat  obscure. 

This  case,  howover,  must  be  decided  by  the  law  as  it  now  is ;  and  a 
majority  of  the  court  think  that  a  reasonable  time  was  not  given  to 
the  tenant  to  remove,  and  that  for  this  reason  a  new  trial  must  he 
granted.  What  will  be  the  opinion  of  the  court  after  another  trial 
cannot  be  now  determined.  On  a  fuller  report  of  the  case  on  this 
point,  perhaps  the  court  may  be  of  opinion  that  time  enough  was 
allowed.  This  must  depend  on  the  circumstances  of  the  case,  Avhicli 
do  not  at  present  sufficiently  appear  by  the  report. 

New  friaJ  gran-led.^ 

1  Jackson.  J.,  and  Pittxam,  J.,  were  of  opinion  that  notico  to  quit  was 
necessary.  The  opinion  of  Mr.  Justice  Putnam  is  given  in  a  note  to  Coffin 
V.  Lunt,  2  Pick.  (Mass.)  70.  71. 

Compare  Carlisle  v.  Weiskopf,  237  Mass.  183;  Crowe  v.  Bixby,  237  Mass. 
249. 

As  to  the  law  in  Maine,  see  Dai'is  v.  Thompson,  13  Me.  209;  Young  v. 
Young,  36  Me.  133;  Wither>i  v.  Larrnbee,  48  Me.  570;  Estey  v.  Baker,  50  Me. 
325;  Seavey  v.  Cloiidman,  90  Me.  536. 


224  CURTIS    V.    GALVIN  [CHAP.   VI 

CURTIS  V.  GALVIN 

1  All.  (Mass.)     215.     1861. 

ToET  for  entering  the  plaintiff's  dwelling-house,  and  removing  his 
furniture  and  ejecting  his  family  therefrom.  The  defendants  proved, 
in  justification,  that  the  defendant  Galvin,  being  the  owner  of  the 
premises,  conveyed  them  by  deed  to  the  other  defendant  Carney,  and 
that,  eight  days  before  the  acts  complained  of,  Carney  informed  the 
plaintiff'  thereof,  and  gave  him  notice  to  quit.  At  the  trial  in  the 
Superior  Court,  Rockwell,  J.,  directed  a  nonsuit,  and  the  plaintiff 
alleged  exceptions.     The  facts  appear  more  fully  in  the  opinion. 

BiGELOw,  C.  J.  It  appears  by  the  testimony  of  the  plaintiff  that, 
in  October,  1858,  prior  to  the  alleged  trespass,  the  premises  from 
which  he  was  ejected  belonged  to  Galvin.  Inasmuch  as  he  offered  no 
evidence  of  any  right  to  their  occupation  created  by  an  instrument 
in  writing,  he  could  have  no  greater  title  or  interest  therein  than  an 
estate  at  will.  Rev.  Sts.  c.  59,  §  29.  On  the  facts  stated  in  the  ex- 
ceptions, this  is  the  most  favorable  vievv  which  can  be  taken  of  his 
right  to  the  possession  and  enjoyment  of  the  premises,  prior  to  the 
conveyance  to  the  defendant  Carney.  But,  on  a  familiar  and  well- 
settled  rule  of  law,  this  tenancy  at  will  was  determined,  and  the 
plaintiff  became  a  tenant  by  sufferance  only  by  the  conveyance  from 
Galvin  to  Carney,  the  other  defendant,  on  the  9th  of  said  October. 
Howard  v.  Merriam,  5  Cush.  563,  574;  McFarland  v.  Chase,  7  Gray, 
462. 

The  evidence  offered  by  the  plaintiff  to  impeach  this  conveyance, 
and  to  show  that  it  was  colorable,  and  was  in  fact  made  for  the  pur- 
pose of  enabling  the  said  Galvin  to  eject  the  plaintiff  from  the  prem- 
ises, was  rightly  rejected.  The  deed  was  a  valid  one  as  between  the 
parties.  It  passed  the  title  to  the  premises.  The  grantor  had  no 
power  to  compel  the  grantee  to  surrender  the  estate  conveyed  to  him. 
It  violated  the  legal  rights  of  no  person.  It  is  true  that  a  creditor 
of  the  grantor,  who  could  show  that  he  was  thereby  hindered,  delayed 
and  defrauded  of  the  collection  of  his  debt,  or  a  subsequent  pur- 
chaser without  notice,  who  could  prove  that  the  deed  was  made  with 
intent  to  defraud  him,  might  impeach  the  conveyance,  and  set  it 
aside  on  the  well-settled  principles  of  the  common  law  as  declared  in 
Sts.  13  Eliz.  c.  5,  §  2,  and  27  Eliz.  c.  4,  §  2.  But  in  such  case  the 
deed  is  valid  between  the  parties;  and,  with  this  exception,  we  know 
of  no  rule  of  law  which  restrains  the  owner  in  fee  from  the  free 
and  unfettered  alienation  of  his  estate.  It  is  only  an  exercise  of  a 
legal  right,  which  works  no  injury  to  any  one,  least  of  all  to  a 
person  who  holds  under  the  grantor.  He  took  his  estate  or  interest 
in  the  premises  subject  to  all  the  legal  rights  of  the  owner  therein, 
and  must  be  presumed  to  have  known  them,  and  to  have  assented 


SECT.    l]         PERRY   V.  ROCKLAND,  ROCKPORT  LIME  CO.  225 

thereto.  To  him,  therefore,  the  maxim  volcnfi  nonfii  injuria  is  appli- 
cable. Tlu^  determination  of  an  estate  at  will,  by  an  alienation  by 
the  owner  of  tin;  reversion,  is  one  of  tlie  legal  incidents  of  such  an 
estate,  to  which  the  right  of  the  lessee  therein  is  subject,  and  by 
which  it  may  be  as  effectually  terminated  as  by  a  notice  to  quit 
given  according  to  the  requisitions  of  the  Statute.  Indeed  it  is 
difficult  to  see  upon  what  ground  a  deed  can  be  held  void,  as  being 
colorable  or  fraudulent,  which  is  made  in  the  exercise  of  a  legal  right, 
and  which  has  no  effect  on  the  rights  of  a  third  party,  who  seeks  to 
set  it  aside,  other  than  that  which  was  necessarily  incident  to  the 
estate  which  he  held  in  the  premises.  The  dictum  of  the  court  in 
Howard  v.  Merriam,  uhi  supra,  cited  by  the  counsel  for  the  plaintiff, 
was  not  essential  to  the  decision  of  that  case,  and  cannot  be  supported 
on  principle  or  authority. 

It  follows  that,  after  the  conveyance  of  the  demised  premises,  the 
plaintiff  became  tenant  by  sufferance  only,  and  could  not  maintain 
this  action  of  tort  in  the  nature  of  trespass  quare  clausam  against 
the  defendant  Carney,  who  was  the  grantee  in  the  deed ;  nor  against 
the  other  defendant,  who  acted  under  his  authority  in  attempting  to 
eject  the  plaintiff  from  the  premises.  At  the  time  of  action  brought, 
it  was  not  the  plaintiff's  close.  A  tenant  by  sufferance  holds  pos- 
session wrongfully.  Co.  Lit.  57  b,  271  a.  The  defendants  had  a  full 
right  of  entry.    Meader  v.  Stone,  7  Met.  147. 

Exceptions  overruled.^ 


PEREY  AND  OTHERS  v.  ROCKLAND  AND  ROCKPORT 

LIME  CO. 

94  Me.  325.    1900. 
On  Report. 

This  was  a  bill  in  equity,  heard  on  bill,  answer  and  proofs  to 
compel  the  defendant,  who  is  the  present  owner  of  a  lime  quarry, 
known  as  the  Blackington   farm   and   quarries,   in   Thomaston,   to 

1  "  Estates  at  will  may  be  determined  by  either  party  by  three  months' 
notice  in  writing  for  that  purpose  given  to  the  other  party;  and  if  the  rent 
reserved  is  payable  at  periods  of  less  than  three  months,  the  time  of  such 
notice  shall  be  sufficient  if  it  is  equal  to  the  interval  between  the  days 
of  payment;  and  in  case  of  neglect  or  refusal  to  pay  the  rent  due  from  a 
tenant  at  will,  fourteen  days'  notice  to  quit,  given  in  writing  by  the  land- 
lord to  the  tenant,  shall  be  sufficient  to  determine  the  tenancy."  Massa- 
chusetts. Gen.  Laws  (1920).  C..186,  §  12.  modelled  on  Acts  1825.  c.  89,  §  4. 
For  temporary  relief  to  tenants,  see  Acts  1919,  c.  257;  Acts  1920,  cc.  538,  554; 
555;  577;  578. 

See  Pratt  v.  Farrar,  10  All.  (Mass.)  519;  DeWoIfe  v.  Roberts,  229  Mass. 
410;  Gavin  v.  Durdc',  Co.,  229  Mass.  576;  Newman  v.  Su.ssma7i,  131  N.  E. 
(Mass.)  926. 

Note  —  As  to  tenancies  for  periods  of  less  than  a  year,  see  Steffens  v. 
Earl  40  N.  J.  L.  128;  Bowcn  v.  Andcrsun,  [18911  1  Q.  B.164;  1  Tavlor  Landl. 
and  Ten.,  9th  ed.,  §  57;  1  Tiffany,  Landl.  and  Ten.,  pp.  132-138. 


226  PERRY  V.  ROCKLAND,  ROCKPORT  LIME  CO.     [CHAP.   VI 

make,  execute,  acknowledge  and  deliver  to  tlic  pliiintiff.s  a  lease  of 
the  same  for  the  term  ending  April  16,  1906. 

The  facts  appear  in  the  opinion. 
Sitting  :    Wiswell,  C.  J.,  Emery,  Haskell,  Whitehouse,  Strout, 

Fooler,  JJ. 

Strout,  J.  On  April  16th,  1898,  the  then  owners  of  a  lime- 
rock  quarry,  leased  a  portion  "of  it  to  the  plaintiffs  for  the  term  of 
one  year  from  that  date.  The  rights  of  the  parties  to  this  suit 
depend  upon  the  clause  in  the  lease,  which  reads :  —  "  The  term  of 
this  lease  shall  be  one  year  from  the  sixteenth  day  of  April,  A.  D. 
1898,  with  the  privilege  to  the  said  Perry  Brothers  of  renewing  the 
same  on  the  same  terms  for  one,  two,  three,  four,  five,  six,  or  seven 
years  additional." 

Neither  during  the  term  of  one  year,  nor  at  its  termination,  did 
the  plaintiffs  give  any  notice  to  the  lessors  of  an  intention  to  renew, 
or  continue  occupancy  of  the  quarry,  for  either  of  the  periods  as  to 
which  they  had  an  election.  But  they  did  in  fact  remain  in  posses- 
sion thereafter,  to  which  the  lessors  made  no  objection.  Shortly 
before  the  expiration  of  the  year's  term,  plaintiffs  removed  to  this 
quarry  and  set  up  a  boiler  in  place  of  one  before  used.  The  rent 
reserved  was  four  cents  net  stumpage  per  cask  for  all  good  stock 
quarried,  and  was  payable  on  the  first  day  of  January  each  year. 
Kent  has  been  paid  to  the  first  day  of  January,  1900,  to  the  then 
owners.  In  May,  1899,  the  title  to  three-fourths  of  the  quarry 
became  vested  in  William  T.  Cobb,  trustee,  who  by  his  deeds  of 
June  7th  and  June  26th,  1899,  conveyed  it  by  quitclaim  to  the 
Penobscot  Bay  Manufacturing  Company,  which  company  conveyed 
it  by  warranty  deed  to  the  defendant  on  January  18th,  1900.  And 
on  the  fifth  day  of  March,  1900,  the  remaining  one-fourth  was  con- 
veyed to  the  defendant. 

The  deeds  to  Cobb  contained  the  provision  :  "  This  conveyance  is 
subject  to  a  lease  of  a  portion  of  said  quarry  and  real  estate  from 
this  grantor  to  Perry  Brothers,  dated  April  16th,  1898,  and  all 
right,  title  and  interest  in  and  to  said  lease,  together  with  the 
rentals  therefrom  accruing  after  June  1,  1899,  are  hereby  assigned 
and  transferred  to  the  said  Cobb,  as  trustee."  A  similar  provision 
is  contained  in  the  deeds  from  Cobb  to  the  Penobscot  Bay  Manu- 
facturing Company.  In  the  deed  from  that  company  to  the  de- 
fendant is  the  clause :  —  "And  also  subject  to  any  existing  rights 
under  a  writing  or  lease  to  Perry  Brothers,  dated  April  16,  1898, 
and  all  right,  title  and  interest  of  the  said  Penobscot  Bay  Manu- 
facturing Company  in,  to,  or  under  and  by  virtue  of  said  writing  or 
lease,  together  with  the  rentals  hereafter  accruing  therefrom,  are 
hereby  assigned,  set  over,  transferred  and  conveyed  to  the  grantee." 
No  similar  provision  was  contained  in  the  deed  of  one-fourth  from 
Frohock  and  others. 


SECT,    ij         PERRY   V.  ROCKLAND,  ROCKPORT  LIME  CO.  227 

The  defendants  therefore  must  be  regarded  as  taking  title  with 
notice  of  whatever  rights,  if  any,  plaintiffs  then  had,  but  their 
rights  were  not  thereby  enlarged. 

Under  the  lease,  plaintiffs  had  the  right  to  renew  or  extend  the 
lease  for  one,  two,  three,  four,  five,  six  or  seven  years  at  their  option. 
They  had  one  right  of  election  and  only  one,  to  be  exercised  by 
the  will  of  the  plaintiffs  communicated  to  the  lessors  or  the  then 
owners  of  the  reversion.  Cunningham  v.  Fattee,  99  Mass.  252. 
Good  faith,  fair  dealing,  as  well  as  the  law,  required  that  the  elec- 
tion should  be  made  during  the  original  term  of  the  lease,  or  at 
its  expiration.  Renaud  v.  Daskam,  34  Conn.  512;  Thiehaud  v. 
First  Nat.  Banl,  42  Ind.  222;  Darling  v.  Hohan,  53  Mich.  599; 
Shamp  V.  White,  106  Cal.  221. 

Notwithstanding  the  fact  that,  shoi'tly  before  the  expiration  of 
the  specific  term  of  the  lease,  plaintiffs  placed  in  the  quarry  another 
boiler,  the  evidence  satisfies  us  that  neither  at  that  time,  nor  at 
the  expiration  of  the  year,  had  the  plaintiffs  arrived  at  the  conclu- 
sion to  have  their  term  extended  for  any  definite  time.  .  .  . 

Nine  months  after  the  expiration  of  the  year's  term  in  the  lease, 
plaintiffs  notified  defendant  in  writing  that  they  had  elected  to 
continue  the  lease,  but  not  specifying  for  what  term.  Enclosed 
with  this  notice  was  draft  of  a  lease  for  seven  years,  which  plain- 
tiffs asked  to  have  executed.  Defendant  declined  to  execute  the 
proposed  lease,  and  distinctly  claimed  that  plaintiffs'  option  termi- 
nated at  the  end  of  the  first  year;  and  that  plaintiffs  having  failed 
to  exercise  their  option,  their  right  had  expired,  and  claimed  posses- 
sion of  the  mine  on  April  16th,  1900.  This  notice  of  the  exercise 
of  plaintiffs'  option  was  too  late.  The  term  of  the  lease  had  ex- 
pired. Plaintiffs  had  failed  to  exercise  seasonably  their  option, 
and  the  right  to  do  so  had  terminated,  yet  plaintiffs  remained  in 
possession  and  were  not  ejected  by  the  then  owners,  as  they  might 
have  been,  and  rent  was  paid  to  the  then  owners  and  accepted  by 
them  until  January  1st,  1900.  No  rent  has  been  paid  to  or  accepted 
by  defendant. 

It  is  strenuously  argued  that  by  thus  holding  over  by  consent  of 
the  reversioner,  the  plaintiffs  had  exercised  their  election  and  per- 
fected their  right  to  an  extended  term  for  the  extreme  period  of 
seven  years.  The  cases  cited  do  not  sustain  such  broad  claim.  In 
•  Kramer  v.  Cool-,  7  Gray  550,  the  lease  gave  an  election  to  lessee  to 
extend  for  a  further  definite  term  at  an  increased  rental.  The 
tenant  held  over  and  paid  two  quarters  rent  at  the  increased  rate. 
This  was  rightly  held  to  justify  the  inference  of  election.  In  Iler- 
sey  V.  Gihlett,  18  Beavan,  174,  Hughes  agreed  to  let  and  Hersey  to 
take  a  house  "  as  a  yearly  tenant,"  and  "  should  Hersey  wish  for  a 
lease  of  the  premises,  Hughes  will  grant  the  same  for  seven,  four- 
teen or  twenty-one  years."  Hersey  occupied  for  seven  years,  and 
then  called  for  a  lease,  and  filed  a  bill  for  specific  performance.     It 


228  PERRY  V.  ROCKLAND,  ROCKPORT  LIME  CO.     [CHAP.    VI 

was  held  that  the  contract  created  a  tenancy  from  year  to  year,  Avith 
an  option  to  the  lessee  to  ask  for  a  lease  from  the  beginning  for 
twenty-one  years,  determinable  at  his  option  for  seven  or  fourteen. 

In  some  jurisdictions  it  is  held  that,  where  the  lease  authorized  a 
renewal  or  extension  for  a  definite  term,  holding  over  by  consent 
amounts  to  an  election  to  hold  for  the  extended  term.  So  held  in 
Terstegge  v.  First  German  Ben.  Society,  92  Ind.  82;  Delashman  v. 
Berry,  20  Mich.  292;  Insurance  &  Law  Building  Co.  v.  Missouri 
BanJc,  71  Mo.  58;  McBrier  v.  Marshall,  126  Pa.  St.  390.  But 
the  Indiana  court  held  in  Whetstone  v.  Davis,  34  Ind.  510,  and 
Folley  V.  Giles,  29  Ind.  114,  that  where  the  lease  provided  for  a 
term  of  one  year,  with  the  privilege  of  the  premises  for  two  or 
three  years,  holding  over  after  the  first  year  operated  only  as  an 
election  to  hold  for  one  year.  In  Buckland  v.  Fapillon,  2  Law 
Reports,  Chancery  Appeals,  67,  there  was  an  agreement  to  let  cer- 
tain premises  for  three  years,  and  also  when  called  upon  by  the 
tenant  to  grant  him  a  lease  for  three  years,  seven  years  or  the  whole 
term.  Under  that  agreement  it  was  held  that  the  option  was  not 
gone  at  the  end  of  the  three  years.  It  could  hardly  have  been  held 
otherwise.  Numerous  cases  are  cited  by  counsel,  to  which  we  do 
not  specifically  refer,  as  they  afford  no  additional  aid  in  the  solution 
of  the  question  involved  here. 

The  insuperable  difficulty  in  this  case  is,  that  the  option  to  extend 
the  lease  was  not  for  a  definite  period,  but  for  any  number  of  years 
not  exceeding  seven  which  the  plaintiff  should  desire.  If  the  holding 
over  was  evidence  of  an  election,  for  how  long  a  term  was  it?  Sup- 
pose within  the  second  year  the  tenant  had  vacated,  could  the  land- 
lord recover  rent  for  the  seven  years?  Or  would  the  tenant  be 
allowed  to  say  he  elected  to  hold  for  one  year  only? 

Some  courts  make  a  distinction  between  a  right  to  renew  a  lease, 
and  the  privilege  of  extension  —  treating  the  former  as  a  covenant, 
requiring  a  new  lease,  and  the  latter,  if  the  option  is  exercised,  as 
a  holding  under  the  original  demise.^  In  this  state,  such  distinction 
is  not  regarded;  in  either  case,  the  additional  term  is  treated  as 
arising  from  the  original  demise.  Willoughhy  v.  Atkinson  Co.,  93 
Maine,   186.^ 

1  See  Renoud  v.  Daskam,  34  Conn.  512;  City  Coal  Co.  v.  Marcus,  HI  Atl. 
(Conn.)  857;  Hamby  v.  Georgia  Iron  Co.,  127  Ga.  792;  Vincent  v.  Laurent, 
165  111.  App.  397;  Thiebaud  v.  Bank,  42  Ind.  212;  Andrews  v.  Marshall  Co., 
118  Iowa  595;  Grant  v.  Collins,  157  Ky.  36;  Miller  v.  Albany  Lodge,  168  Ky. 
755;  Lcavitt  v.  Maykel,  203  Mass.  506;  Kuhlman  v.  Lemp  Co.,  87  Neb.  72. 
88  Neb.  1;  Huger  v.  Dibble,  8  Rich.  L.  (S.  C.)  222;  Whalen  v.  Manley,  68 
W.  Va.  328. 

2  See  Caley  v.  Thomquist,  89  Minn.  348;  Insurance  Co.  v.' Bank,  71  Mo. 
58;  Kelso  v.  Kelly,  1  Daly  (N.  Y.)  419;  Harding  v.  Seeley,  148  Pa.  20;  Henry 
v.  Bruhn,  110  Wash.  321. 

Authorities  are  collected  in  29  L.  R.  A.  N.  S.  174  note;  L.  R.  A.  1916  E. 
1232  note,  1237  note. 


SECT.    l]         PERRY  V.  ROCKLAND,  ROCKPORT  LIME  CO.  229 

At  common  law  under  a  lease  for  a  year  or  a  term  of  years,  hold- 
ing over  by  the  tenant,  by  consent  of  landlord,  created  a  tenancy 
from  year  to  year,  and  mere  holding  over  without  consent,  a  ten- 
ancy at  sufferance.  But  under  our  statutes,  holding  over  after 
expiration  of  the  term  creates  a  tenancy  at  will.  Franklin  Land 
Co.  V.  Card,  84  Maine,  532. 

Kendall  v.  Moore,  30  Maine,  330,  was  a  case  where  under  a 
lease  for  a  year,  the  tenant  held  over  about  six  months  and  paid 
one  quarter's  rent.  The  landlord  claimed  rent  for  the  entire  year, 
but  the  court  held  that  the  lessee  was  tenant  at  will,  and  not  liable 
for  rent  beyond  the  time  of  his  occupancy. 

The  plaintiffs  in  this  case  failed  to  make  seasonably  an  election 
to  have  the  lease  extended,  and  the  term  therefore  ended  on  April 
16th,  1899.  Thereafterward  they  held  the  premises  as  tenant  at 
will  to  the  then  owners.  The  conveyances  of  title  to  the  defend- 
ant in  January  and  March,  1900,  terminated  their  tenancy  and  all 
right  of  possession.     Seavey  v.   Cloudman,  90  Maine,  536. 

Defendant  has  never  recognized  the  plaintiffs  as  its  tenant. 
Their  holding  therefore  is  without  right. 

Bill  dismissed  with  costs.^ 

^  But  see  Anderson  v.  Dodsworth,  292  111.  335;  Falley  v.  Giles,  29  Ind. 
114;  Trustees  oj  Orphan  House  v.  Hoyle,  79  Misc.  (N.  Y.)  301. 

Note. —  On  the  constitutionality  of  recent  statutes  passed  to  ameliorate 
housing  conditions,  see  BlocI:  v.  Hirsh,  256  U.  S.  ;  Marcus  Brown  Hold- 

ing Co.  v.  Feldman,  256  U.  S.  ;   11  A.  L.  R.  1252  note. 


230  HART    V.    WINDSOR  [CHAP.    VI 


sectio:n'  II 

COVENANTS.      AND  HEREIN   OF   PERMISSIVE   WASTE 

HARt\;.  WINDSOR 

12  M.  &  W.  68.     1843. 

Debt.  —  The  declaration  alleged,  that  whereas  theretofore,  to  wit, 
on  the  23d  June,  1843,  by  a  certain  memorandum  of  agreement 
made  and  entered  into  between  the  plaintiff  of  the  one  part,  and  the 
defendant  of  the  other  part,  the  plaintiff  agreed  to  let,  and  the  de- 
fendant agreed  to  hire  and  take  of  the  plaintiff,  a  certain  messuage 
or  tenevient  and  garden  ground,  in  the  said  memorandum  of  agree- 
ment particularly  mentioned  and  described,  with  the  use  of  several 
fixtures  and  things  therein,  for  the  term  of  three  years  from  the 
24th  of  June  then  instant,  at  the  yearly  rent  of  £50,  payable  quar- 
terly, on  the  29th  of  September,  the  25th  of  December,  the  25th 
of  March,  and  the  24th  of  June,  in  each  year  of  the  said  term,  free 
from  all  deductions  whatsoever ;  the  first  payment  thereof  to  be  made 
on  the  29th  of  September  then  next  ensuing,  the  plaintiff  paying 
all  rates  and  taxes  in  respect  of  the  said  premises,  and  the  defend- 
ant paying  all  personal  rates  and  taxes;  and  the  defendant,  amongst 
other  things,  agreed  to  preserve  the  said  messuage  or  tenement  and 
premises  in  good  and  tenantable  repair  and  condition,  and  to  de- 
liver up  the  said  messuage  or  tenement  and  premises  in  like  repair 
and  condition,  together  with  all  the  keys,  fixtures,  and  other  things 
thereupon  or  belonging  thereto,  (reasonable  wear  and  tear  and 
damage  by  fire  only  excepted),  at  the  end  or  other  sooner  deter- 
mination of  the  said  term  of  three  years,  as  by  the  agreement  fully 
appears;  by  virtue  of  which  said  agreement  the  defendant  then  en- 
tered into  and  became  possessed  of  the  said  messuage  or  tenement 
and  premises,  and  was  and  continued  possessed  thereof  from  the 
said  24th  of  June,  1843,  until  and  upon  the  29th  of  September  in 
the  same  year,  when  a  large  sum  of  money,  to  wit,  12/.  lOs.  of  the 
rent  aforesaid,  for  one  quarter  of  a  year  of  the  said  term,  ending 
on  the  day  and  year  last  aforesaid,  and  then  last  elapsed,  became  and 
was  due  and  payable  from  the  defendant  to  the  plaintiff,  under  and 
by  virtue  of  the  said  agreement,  and  still  is  in  arrear  and  unpaid 
to  the  plaintiff,  whereby,  &rc. 

Pleas:  first,  a  traverse  of  the  agreement  stated  in  the  declaration; 
secondly,  that  the  said  messuage  or  tenement  was  so  demised  and 
let  to  the  defendant  for  the  purpose  of  his  inhabiting  the  same,  and 
dwelling  therein  during  the  said  term :  and  that  before  and  at  the 


SECT.  II.]  HART    V.    WINDSOR  231 

time  of  making  the  said  agreement,  and  also  at  the  time  when  the 
defendant  entered  into  and  became  possessed  of  the  messuage  or 
tenement  and  premises,  as  in  the  declaration  alleged,  and  from 
thence  until  and  at  the  time  of  the  defendant's  quitting,  vacating, 
and  abandoning  the  possession  of  the  same,  as  hereinafter  mentioned, 
the  said  messuage  or  tenement  was  not  in  a  reasonable,  fit,  and 
proper  state  or  condition  for  habitation  or  dwelling  therein;  and  the 
same  was  then,  and  during  all  the  time  aforesaid,  in  that  state  and 
condition  that  the  defendant  could  not  reasonably  inhabit  or  dwell 
therein,  or  have  any  beneficial  use  or  occupation  of  the  same,  for  and 
by  reason  of  the  same  being  greatly  infested,  swarmed,  and  overrun 
with  noxious,  stinking,  and  nasty  insects,  called  bugs,  and  not  for 
or  by  reason  of  any  act,  default,  or  omission  of  the  defendant;  and 
the  defendant,  before  or  at  the  time  of  his  making  the  said  agree- 
ment, had  no  notice  or  knowledge  thereof ;  and  the  defendant  after- 
wards, and  after  he  so  entered  and  became  possessed  of  the  said  mes- 
suage or  tenement,  and  before  the  said  sum  of  121.  10  s.,  or  any  part 
thereof,  became  due  or  payable,  to  wit,  on  the  25th  of  June,  1843, 
discovered  and  first  had  notice  of  the  said  state  and  condition  of 
the  said  messuage  or  tenement,  and  of  the  same  being  so  infested, 
swarmed,  and  overrun  Avith  bugs  as  aforesaid;  and  thereupon  the  de- 
fendant upon  such  discovery  and  notice,  and  before  the  said  sum 
of  12/.  10s.,  or  any  part  thereof,  became  due  or  payable,  to  Avit, 
on  the  day  and  year  last  aforesaid,  quitted,  vacated,  and  abandoned 
the  possession,  and  wholly  ceased  and  abstained  from  all  further  occu- 
pation or  possession  of  the  said  messuage  or  tenement  and  premises 
so  demised  as  aforesaid,  and  then  gave  notice  of  the  premises  to  the 
plaintiff  of  the  defendant's  having  so  quitted,  vacated,  and  abandoned 
the  possession  of  the  said  messuage  or  tenement  and  premises,  and 
suffered  and  permitted  him  to  take  and  have  and  retain,  and  he 
could  and  might  have  taken  and  retained,  possession  of  the  said 
messuage  or  tenement  and  premises;  and  the  defendant  from  thence 
hitherto  hath  ceased  all  further  possession,  use,  or  occupation  of  the 
said  messuage  or  tenement  and  premises,  and  not  derived  any  benefit 
therefrom;  and  that  at  and  from  the  time  of  the  commencement  of 
the  said  term,  until  the  time  of  his  so  quitting,  vacating,  and  aban- 
doning possession  of  the  said  messuage  or  tenement  and  premises, 
and  ceasing  all  further  occupation  thereof,  he  had  no  beneficial  use 
or  occupation  whatever  of  the  same.     Verification. 

Thirdly,  that  he  was  induced  and  persuaded  to  make,  and  did 
make  and  enter  into,  the  said  agreement  and  promise  in  the  said 
declaration  mentioned,  by  the  fraud,  covin,  and  misrepresentation 
of  the  idaintiff  and  others  in  collusion  with  him.     Verification. 

Replication  to  the  second  plea,  dc  injuria:  and  to  the  third,  that 
the  defendant  was  not  induced  to  make,  and  did  not  make  or  enter 
into  the  said  agreement  by  the  fraud,  covin,  or  misrepresentation 
in  the  plea  mentioned. 


232  HART    V.    WINDSOR  [CHAP.   VI 

Tlie  cause  was  tried  before  Rolfc,  B.,  at  the  sittings  in  Hilary  Term, 
1844,  wheu  the  facts  alleged  in  the  second  plea  having  been  fully 
proved,  a  verdict  was  found  for  the  defendant  on  the  issue  raised 
by  that  plea.  C.  G.  Addison,  on  a  subsequent  day  in  the  same  term, 
obtained  a  rule  for  judgment  non  obstante  veredicto,  on  the  ground 
that  the  facts  stated  in  the  plea  were  no  answer  to  the  action. 

The  judgment  of  the  Court  was  now  delivered  by 

Parke,  B.  —  This  was  a  case  very  fully  and  ably  argued  a  few 
days  ago,  upon  shewing  cause  against  a  rule  for  judgment  non 
obstante  veredicto.  The  declaration  is  not  for  use  and  occupation, 
but  on  an  agreement  in  the  nature  of  a  lease.  [His  Lordship  here 
read  the  declaration  and  the  second  plea.]  The  question  is,  whether 
the  plea  contains  substantially  a  good  answer  to  the  plaintiff's 
claim  for  a  quarter's  rent,  becoming  due  after  the  defendant  quitted. 

On  the  part  of  the  plaintiff,  it  was  insisted  that  it  did  not,  for 
several  reasons ;  the  principal  one  being,  that  where  there  is  an  actual 
demise  of  the  unfurnished  fabric  of  a  specific  messuage  for  a  term, 
there  is  no  contract  implied  by  law  on  the  part  of  the  lessor,  that  the 
messuage  was  at  the  time  of  the  demise,  or  should  be  at  the  com- 
mencement of  the  term,  in  a  reasonably  fit  and  proper  state  and  con- 
dition for  habitation  (that  is,  so  far  as  concerned  the  fabric), 
though  it  w'as  demised  and  let  for  the  purpose  of  immediate  habita- 
tion. As  we  are  all  of  opinion  in  favour  of  the  plaintiff  upon  this 
objection,  it  is  unnecessary  to  observe  upon  the  others  in  detail;  but 
it  may  not  be  useless  to  remark,  that  two  of  them  are  very  impor- 
tant, and  have  not  been  satisfactorily  answered;  viz.,  that  if  such  a 
contract  is  implied  by  law,  it  would  be  no  defence,  Avhere  the 
tenant  has  actually  occupied;  his  remedy  would  be  by  a  cross 
action ;  and  to  constitute  a  valid  defence  on  the  ground  of  the  breach 
of  this  contract,  the  law  must  give  also  a  right  to  abandon  the  lease 
upon  the  breach  of  it;  that  is,  to  make  a  defence,  the  law  must 
imply,  not  merely  a  contract,  but  a  condition  that  the  lease  should 
be  void  if  the  house  was  unfit  for  occupation.  The  cases  cited  from 
Brooke's  Abr.  "  Dette,"  18  and  72,  are  decisive,  that  where  the  lessor 
is  bound  by  the  custom  of  London,  or  by  covenant,  to  repair,  and 
does  not,  the  tenant  cannot  quit.  The  other  objection,  which  we 
think  right  to  notice,  is,  that  in  this  case  the  house  and  some  garden 
ground  are  both  demised;  and  to  make  the  plea  good,  it  must  be 
held,  that,  if  a  messuage  be  taken  for  habitation,  and  land  for  occu- 
pation, by  the  same  lease,  there  is  such  an  implied  contract  for  the 
fitness  of  the  house  for  habitation,  as  that  its  breach  would  author- 
ize the  tenant  to  give  up  both.  Whether,  if  there  were  such  a  con- 
tract or  condition  implied  by  law,  generally,  it  would  be  implied  in 
this  case,  w^here  the  defendant  agrees  to  preserve  \\\  tenantable  con- 
dition, is  a  question  on  which  it  is  quite  unnecessary  to  enter. 

The  point  to  be  considered,  then,  is,  whether  the  law  implies  any 
contract  as  to  the  condition  of  the  property  demised,  where  there 


SECT.  II.]  HART    V.    WINDSOR  233 

is  a  lease  of  a  certain  ascertained  subject,  being  real  property,  and 
that  lease  is  made  for  a  particular  object. 

The  question  relates  to  a  case  of  actual  demise  of  a  specific  tene- 
ment, and  we  have  not  to  inquire  what  the  obligations  of  a  party 
would  be  under  an  executory  agreement,  to  procure  a  lease  of  some 
house  for  the  habitation  of  another ;  nor  whether  the  defendant  would 
not  be  exonerated  on  the  ground  of  fraud  in  the  plaintiff,  if  the  plain- 
tiff knew  of  the  defect  in  the  house  himself,  and  that  the  defendant 
would  not  have  taken  the  house  if  he  knew  it;  nor  have  we  to 
consider  whether  the  defendant  would  be  responsible,  if  at  the  time 
of  the  demise  there  was  no  house  at  all  - —  he  may  be,  by  reason  of  the 
implied  contract  for  title  to  a  house,  not  the  land  merely:  which 
imports  that  the  subject  of  the  contract  exists.  The  simple  question 
is,  what  is  the  implied  obligation  on  the  part  of  the  landlord  to  his 
tenant,  under  a  lease  of  a  house  for  years. 

Considering  this  case  without  reference  to  the  modern  authorities, 
which  are  said  to  be  at  variance,  it  is  clear  that  from  the  word  "  de- 
mise," in  a  lease  under  seal,  the  law  implies  a  covenant,  in  a  lease 
not  under  seal,  a  contract,  for  title  to  the  estate  merely,  that  is, 
for  quiet  enjoj'ment  against  the  lessor  and  all  that  come  in  under 
him  by  title,  and  against  others  claiming  by  title  paramount  during 
the  term;  and  the  word  "let,"  or  any  equivalent  words,  (Shepp. 
Touch  272),  which  constitute  a  lease,  have,  no  doubt,  the  same 
effect,  but  not  more.  Shepp.  Touch.  165,  167.  There  is  no  author- 
ity for  saying  that  these  words  imply  a  contract  for  any  particular 
state  of  the  property  at  the  time  of  the  demise;  and  there  arc 
many,  which  clearly  shew  that  there  is  no  implied  contract  that  the 
property  shall  confinue  fit  for  the  purpose  for  which  it  is  demised; 
as  the  tenant  can  neither  maintain  an  action,  nor  is  he  exonerated 
from  the  payment  of  rent,  if  the  house  demised  is  blown  down,  or 
destroyed  by  fire,  Monk  v.  Cooper,  2  Stra.  763,  Balfour  v.  Weston, 
1  T.  R.  310,  and  Ainsley  v.  Rutfer  there  cited;  or  gained  upon  by 
the  sea,  Taverner's  case,  Dyer,  56  a ;  or  the  occupation  rendered 
impracticable  by  the  king's  enemies,  Paradine  v.  Jane,  Alleyn,  26; 
or  where  a  wharf  demised  was  swept  away  by  the  Thames,'  Carter 
V.  Cummings,  cited  in  1  Chanc.  Ca.  84.  In  all  these  cases,  the 
estate  of  the  lessor  continues,  and  that  is  all  the  lessor  imi)liodly 
warrants. 

It  appears,  therefore,  to  us  to  be  clear  upon  the  old  authorities, 
that  there  is  no  implied  warranty  on  a  lease  of  a  house,  or  of  land, 
that  it  is,  or  shall  be,  reasonably  fit  for  habitation  or  cultivation. 
The  implied  contract  relates  only  to  the  estate,  not  to  the  condi- 
tion of  the  property. 

But  the  defendant's  counsel  rely  upon  some  niodcni  decisions  in 
support  of  the  positions  wliicli  they  are  to  maintain.  It  is  not  neces- 
sary to  refer  to  the  cases  on  tlu'  im])lied  warranty  of  cliattels.  further 
than  to  say  that  the  rule  of  tlie  common  law,  wliicli  prevails  in  gen- 


234  HART    V.    WINDSOR  [CHAP.   VI 

eral  Co.  Lit.  102  a.,  that  there  is  no  implied  warranty  on  the  sale 
of  specific  goods,  has  had  exceptions  engrafted  upon  it,  where  the 
goods  are  ordered  from  a  manufacturer,  or  tradesman,  who  impliedly 
engages  to  use  a  proper  degree  of  skill  and  care,  in  constructing  or 
supplying  them.  Such  are  the  cases  of  Brown  v.  Edgington,  2  Man. 
&  Gr.  279;  2  Scott  K  E.  496,  Shepherd  v.  Pyhus,  3  Man.  &  Gr. 
868 ;  4  Scott  N.  K.  434,  and  others.  These  have  no  bearing  on 
the  present  case. 

But  the  defendant  chiefly  rests  his  case  upon  the  decision  of 
Smith  V.  Marrahle,  11  M.  &  W.  5.  My  judgment  in  that  case  cer- 
tainly proceeded  upon  the  authority  of  two  previous  decisions,  which, 
though  they  contained  a  novel  doctrine,  had  not  been  questioned  in 
"Westminster  Hall,  and  had  received,  to  a  certain  degree,  the  sanction 
of  the  Lord  Chief  Justice  Tindal,  in  a  subsequent  case.  Those  cases 
were  Edwards  v.  Etherington,  before  Lord  Tenterden,  and  afterwards 
the  Court  of  King's  Bench,  Ry.  &  M.  268,  and  7  D.  &  R.  117,  and 
CoUins  V.  Barrow,  1  M.  &  Rob.  112;  and  the  last,  that  before 
Lord  Chief  Justice  Tindal,  Avas  Salisbury  v.  Marshall,  4  Car.  & 
P.  65;  and  I  thought  they  established  the  doctrine,  not  merely  that 
there  was  an  implied  contract  on  the  part  of  the  lessor,  that  the 
house  demised  should  be  habitable,  but  an  implied  condition,  that 
the  lease  should  be  void  if  it  w^ere  not,  and  the  tenant  chose  to  quit. 
From  the  full  discussion  which  those  cases  have  now  undergone,  on 
the  present  argument,  and  that  in  the  recent  case  of  Sutton  v. 
Temple,  I  feel  satisfied  they  cannot  be  supported,  if  the  reports  of 
them  are  correct ;  and  we  all  concur  in  opinion  that  they  are  not 
law,  —  an  opinion  strongly  intimated,  in  the  case  of  Sutton  v. 
Temple,  in  which  this  Court  decided,  that  there  was  no  implied  war- 
ranty of  condition  or  fitness  for  a  particular  purpose  on  a  lease  of 
aftermath. 

We  are  under  no  necessity  of  deciding  in  the  present  case,  whether 
that  of  Smith  v.  Marrahle  be  law  or  not.  It  is  distinguishable  from 
the  present  v^ase  on  the  ground  on  which  it  was  put  by  Lord  Abinger, 
both  on  the  argument  of  the  case  itself,  but  more  fully  in  that  of 
Sutton-  V.  Temple;  for  it  was  the  case  of  a  demise  of  a  ready- 
furnished  house  for  a  temporary  residence  at  a  watering-place.  It 
was  not  a  lease  of  real  estate  merely.  But  that  case  certainly  can- 
not be  supported  on  the  ground  on  which  I  rested  my  judgment. 

We  are  all  of  opinion,  for  these  reasons,  that  there  is  no  contract, 
still  less  a  condition,  implied  by  law  on  the  demise  of  real  property 
only,  that  it  is  fit  for  the  purpose  for  which  it  is  let.  The  princi- 
ples of  the  common  law  do  not  warrant  such  a  position;  and  though, 
in  the  case  of  a  dwelling-house  taken  for  habitation,  there  is  no 
apparent  injustice  in  inferring  a  contract  of  this  nature,  the  same 
rule  must  apply  to  land  taken  for  other  purposes  —  for  building 
upon,  or  for  cultivation;  and  there  would  be  no  limit  to  the  incon- 
venience which  would  ensue.     It  is  much  better  to  leave  the  parties 


SECT.    II]  GOTT   AND    FARQUHARSON    V.    GANDY  235 

in  every  case  to  protect  their  interests  themselves,  hy  proper  stipu- 
lations, and  if  they  really  mean  a  lease  to  be  void  by  reason  of  any 
unfitness  in  the  subject  for  the  purpose  intended,  they  should  ex- 
press that  meaning.  Judgment  for  the  plaintiffs 


GOTT  A^D  FAKQUHARSON  v.  GAXDY 

2  E.  &  B.  845.     1853. 

Count  :  that  plaintiffs  were  tenants  to  defendant  of  certain  work- 
shops, buildings  and  premises  from  year  to  year;  and,  during  the 
tenancy,  and  whilst  plaintiffs  were  in  the  occupation  of  the  premises 
as  such  tenants  to  defendant,  "  a  certain  chimney,  parcel  of  the  said 
premises,  without  any  neglect  or  default  on  the  part  of  the  plain- 
tiffs, became  and  was  in  an  insecure  state  and  condition,  and  in 
danger  of  falling  from  want  of  substantial  repairs  in  that  behalf; 
of  all  which  the  plaintiffs  then  and  long  before  the  day  herein- 
after mentioned  gave  notice  to  the  defendant.  Yet  the  defendant, 
not  regarding  his  duty  in  that  behalf,  did  not  nor  would  at  the  time 
of  such  notice,  or  in  a  reasonable  time  thereafter,  or  at  any  time," 
repair  the  chimney,  which  afterwards,  and  during  the  tenancy,  on 
27th  Decemher.  1852,  fell,  and  damaged  j^laintiff's  goods. 

Demurrer.     Joinder. 

Lord  Cambell,-  C.  J.  I  am  of  opinion  that  this  declaration  is 
bad  in  substance.  Unless  the  declaration  shews  a  state  of  things 
from  which  the  law  implies  a  duty  to  do  those  things,  which  the  de- 
fendant has  not  done,  the  general  allegation  "  the  defendant,  not  re- 
garding his  duty  "  &c.,  goes  for  nothing.  Now  let  us  see  what  are 
the  facts  alleged.  They  are  these :  the  defendant  was  landlord  of 
premises  which  were  let  to  the  plaintiffs  f I'om  year  to  year :  during 
the  tenancy  the  premises  were  in  a  dangerous  state  for  want  of  sub- 
stantial repairs :  the  defendant  had  notice  from  the  plaintiffs,  and 
was  requested  to  repair  them,  and  did  not  do  so.  Whence  does  the 
legal  duty  to  repair  these  premises  on  request  arise?  There  is 
no  allegation  of  any  contract  to  do  substantial  repairs.  It  lies 
therefore  on  the  counsel  of  the  plaintiffs,  who  are  actors,  to  estab- 
lish, on  authority  or  on  principle,  that  this  obligation  results  from 
the  relation  of  landlord   and   tenant.     Mr.  Russell  can  produce  no 

1  Rochr!^  V.  Timmons,  28  Ind.  App.  578;  Rowr  v.  H unking,  135  Mass.  380; 
Daly  V.  Wij^e,  132  N.  Y.  306:  Wood  v.  Car.^on.  257  Pa.  522;  St.  George  Man- 
sion.H  V.  Hetherington,  42  Ont.  L.  Rep.  10.  4  A.  L.  R.  1453  note,  aceord. 
Compare  Gatcly  v.  Campbell,  124  Cal.  520;  Pratt  v.  Graftnn  Eleetrie  Co.,  182 
Mass.  180;  Gri'jfjn  v.  Freeborn.  181  Mo.  App.  203;  Clark  v.  Sharpe,  76  N.  H. 
446;  Keate.^  v.  Cadogan,  10  C.  B.  591;  Stanton  v.  Soutkwiek,  [19201  2  K.  B. 
642;  Stat.  9  Edw.  7,  c.  44.  §§  14,  15;  21  Col.  L.  Rev.  261.  Contra.  Louisiana 
Civil  Code,  §§  2692-2095. 

2  The  concurring  opinions  of  Coi.ehidce  and  Erle.  JJ..  are  omitted. 


236  INGALLS   AND   ANOTHER    V.    HOBBS  [CHAP.    VI 

authority  in  bis  favour,  not  even  a  dictum.  Aiul  I  have  heard  no 
leo'al  principle  from  which  it  would  follow  that  the  landlord  was 
bound  to  repair  the  premises.  It  is  clear  to  my  mind  that,  though, 
in  the  absence  of  an  express  contract,  a  tenant  from  year  to  year  is 
not  bound  to  do  substantial  repairs,  yet,  in  the  absence  of  an  express 
contract,  he  has  no  right  to  compel  his  landlord  to  do  them. 

Judgment  for  defendant} 


INGALLS  AND  ANOTHER  v.  HOBBS 
156  Mass.  348.    1892, 

Contract,  to  recover  five  hundred  dollars  for  use  and  occupation, 
during  the  summer  of  1890,  of  a  house  in  Swampscott.  The  case 
was  submitted  to  the  Superior  Court,  and,  after  judgment  for  the 
defendant,  to  this  court,  on  appeal,  on  agreed  statement  of  evidence. 
Knowlton,  J.  This  is  an  action  to  recover  five  hundred  dollars 
for  the  use  and  occupation  of  a  furnished  dAvelling-house  at  Swamp- 
scott, during  the  summer  of  1890.  It  was  submitted  to  the  Superior 
Court  on  what  is  entitled  an  "  agreed  statement  of  evidence,"  by 
which  it  appears  that  the  defendant  hired  the  premises  of  the  plain- 
tiffs for  the  season,  as  a  furnished  house,  provided  with  beds,  mat- 
tresses, matting,  curtains,  chairs,  tables,  kitchen  utensils,  and  other 
articles,  which  were  apparently  in  good  condition ;  and  that  when  the 
defendant  took  possession  it  was  found  to  be  more  or  less  infested 
with  bugs,  so  that  the  defendant  contended  that  it  was  unfit  for 
habitation,  and  for  that  reason  gave  it  up  and  declined  to  occupy  it. 

The  agreed  statement  concludes  as  follows :  "  If,  under  the  above 
circumstances,  said  house  was  not  fit  for  occupation  as  a  furnished 
house,  and,  being  let  as  such,  there  Avas  an  implied  agreement  or 
warranty  that  the  said  house  and  furniture  therein  should  be  fit  for 
use  and  occupation,  judgment  is  to  be  for  the  defendant,  with  costs; 
if,  however,  under  said  circumstances,  said  house  was  fit  for  occupa- 
tion as  a  furnished  house,  or  there  was  no  such  implied  agreement 
or  warranty,  judgment  is  to  be  for  the  plaintiffs,  in  the  sum  of  five 
hundred  dollars  ($500),  with  interest  from  date  of  writ,  and  costs." 
Judgment  was  ordered  for  the  defendant,  and  the  plaintiffs  appealed 
to  this  court. 

The  agreement  of  record  shows  that  the  facts  were  to  be  treated 

1  Little  Rock  Ice  Co.  v.  Consumers  Ice.  Co.,  114  Ark.  532;  Milk  v. 
Swanton,  222  Mass.  557;  Conahan  v.  Fisher,  233  Mass.  234:  Petz  v.  Voigt 
Brewing  Co.,  116  Mich;  418;  Rheims  v.  DoUey,  93  Misc.  (N.  Y.)  500;  Smith- 
field  Co.  V.  Coley-Bardin,  156  N.  C.  255,  accord.  Compare  Doyle  v.  Union 
Pac.  Ry.  Co.,  147  U.  S.  413;  Valin  v.  .Jewell.  88  Conn.  151;  Me.serole  v.  Hoyt, 
161  N.  Y.  59;  May  v.  Gillis,  169  N.  Y.  330;  Floi/d-Jones  v.  Schaan.  129  App. 
Div.  (N.  Y.)  82;  Horton  v.  Early,  39  Okl.  99;  Auer  v.  Vahl,  129  Wis.  635. 

Contra,  Louisiana,  Civil  Code.  §§  2692-2695. 


SECT.    II  ]  INGALLS   AND   ANOTHER    V.    HOBBS  237 

by  the  Superior  Court  as  evidence  from  whieli  inferences  of  fact 
miglit  be  drawn.  The  only  ^'  matter  of  law  apparent  on  the  record," 
which  can  be  considered  on  an  appeal  in  a  case  of  this  kind,  is  the 
question  whether  the  judgment  is  warranted  by  the  evidence.  Pub. 
Sts.  c.  152,  §  10.  Charlton  v.  Donnell,  100  Mass.  229.  Fitzsimmons 
V.  Carroll,  128  Mass.  401.  Old  Colony  Railroad  v.  Wilder,  137  Mass. 
536.  Mayhem  v.  Durfee,  138  Mass.  584.  Eecht  v.  Batcheller,  147 
Mass.  335.    Rand  v.  Hanson,  154  Mass.  87. 

The  facts  agreed  warrant  a  finding  that  the  house  was  unfit  for 
habitation  when  it  was  hired,  and  we  are  therefore  brought  directly 
to  the  question  whether  there  was  an  implied  agreement  on  the  part 
of  the  plaintiffs  that  it  was  in  a  proper  condition  for  immediate  use 
as  a  dwelling-house.  It  is  well  settled,  both  in  this  Commonwealth 
and  in  England,  that  one  who  lets  an  unfurnished  building  to  be 
occupied  as  a  dwelling-house  does  not  impliedly  agree  that  it  is 
fit  for  habitation.  Button  v.  Gerrish,  9  Cush.  89.  Foster  v.  Peyser, 
9  Cush.  242.  Stevens  v.  Pierce,  151  Mass.  207.  Sutton  v.  Temple, 
12  M.  &  W.  52.  Hart  v.  Windsor,  12  M.  &  W.  68.  In  the  absence 
of  fraud  or  a  covenant,  the  purchaser  of  real  estate,  or  the  hirer  of  it, 
for  a  term  however  short,  takes  it  as  it  is,  and  determines  for  him- 
self whether  it  will  serve  the  purpose  for  which  he  wants  it.  He  may, 
and  often  does,  contemplate  luaking  extensive  repairs  upon  it  to 
adapt  it  to  his  wants.  But  there  are  good  reasons  why  a  different 
rule  should  apply  to  one  who  hires  a  furnished  room  or  a  furnished 
house  for  a  few  days  or  a  few  weeks  or  months.  Its  fitness  for  imme- 
diate use  of  a  particular  kind,  as  indicated  by  its  appointments,  is 
a  far  more  important  element  entering  into  the  contract  than  when 
there  is  a  mere  lease  of  real  estate.  One  who  lets  for  a  short  term 
a  house  provided  with  all  furnishings  and  appointments  for  imme- 
diate residence  may  be  supposed  to  contract  in  reference  to  a  well 
understood  purpose  of  the  hirer  to  use  it  as  a  habitation.  An  im- 
portant part  of  what  the  hirer  pays  for  is  the  opportunity  to  enjoy 
it  without  delay,  and  without  the  expense  of  pre])aring  it  for  use. 
It  is  very  difiicult,  and  often  iiupossible,  for  one  to  determine  on  in- 
spection whether  the  house  and  its  appointments  are  fit  for  the  use 
for  which  they  are  immediately  wanted,  and  the  doctrine  caveat 
emptor,  which  is  ordinarily  applicable  to  a  lessee  of  real  estate, 
would  often  work  injustice  if  applied  to  cases  of  this  kind.  It  would 
be  unreasonable  to  hold,  under  such  circumstances,  that  the  landlord 
does  not  impliedly  agree  that  what  he  is  letting  is  a  house  suitable  for 
occtipation  in  its  condition  at  the  time.  This  distinction  between 
furnished  and  unfurnished  houses,  in  reference  to  the  construction  of 
contracts  for  letting  them,  when  there  are  no  express  agreements 
about  their  condition,  has  long  been  recognized  in  England,  where 
it  is  held  that  there  is  an  implied  contract  that  a  furnished  house, 
let  for  a  short  time,  is  in  ])roper  condition  for  immediate  occupa- 
tion as  a  dwelling.     Smith  v.  Marrahle,  11  M.  &  W.  5.     Wilson  v. 


238  MOOHE    V.    TOWNSHEND  [CHAP.   VI 

Finch  Uation,  2  Ex.  D.  336.  Mancliesier  Bonded  Warehouse  Co. 
V.  Carr,  5  C.  P.  D.  507.  Sutton  v.  Tempte,  ubi  supra.  Hart  v. 
Windsor,  ubi  supra.  Bird  v.  Lord  Greville,  1  C.  &  E.  317.  Charsley 
V.  Jones,  53  J.  P.  280. 

In  Button  v.  Gerrish,  9  Cush.  89,  Chief  Justice  Shaw  recognizes 
the  doctrine  as  applicable  to  furnished  houses;  and  in  Edwards  v. 
McLean,  122  N.  Y.  302,  Smith  v.  Marrahle  and  Wilson  v.  Finch 
Hatton,  cited  above,  are  referred  to  with  approval,  although  held 
inapplicable  to  the  question  then  before  the  court.  See  Cleves  v. 
Willoughhy,  7  Hill,  (N.  Y.)  83;  Franklin  v.  Brown,  118  N.  Y.  110. 

We  are  of  opinion  that  in  a  lease  of  a  completely  furnished  dwell- 
ing-house for  a  single  season,  at  a  summer  watering-place,  there  is 
an  implied  agreement  that  the  house  is  fit  for  habitation,  without 
greater  preparation  than  one  hiring  it  for  a  short  time  might 
reasonably  be  expected  to  make  in  appropriating  it  to  the  use  for 
which  it  was  designed.  Judgment  affirmed.^ 


MOORE  V.  TOWNSHEJsTD 

33  N.  J.  L.  284.     1869. 

This  was  an  action  on  the  case  in  the  nature  of  waste,  to  recover 
damages  for  permissive  waste,  tried  at  the  Cumberland  Cii'cuit. 
The  plaintiff,  on  the  5th  of  November,  1853,  by  a  lease,  under  seal, 
demised  to  the  defendant  the  premises  known  as  The  Eagle  Glass 
Works,  in  the  county  of  Cumberland,  together  with  one  hundred 
and  fifty  moulds,  and  all  the  tools  of  every  description  connected 

1  Smith  v.  Marrahle,  11  M.  &  W.  5;  Wilson  v.  Hatton,  2  Ex.  Div.  336, 
accord. 

Contra,  Fisher  v.  Lighthall,  4  Mackey  (D.  C.)  82;  Murray  v.  Albcrtson,  50 
N.  J.  L.  167.    And  see  Edwards  v.  McLean,  122  N.  Y.  .302. 

Compare  Sarson  v.  Roberts,  [1895]  2  Q.  B.  395;  4  A.  L.  R.  1456,  1475  note. 

"  The  first  question  which  arises  is  whether  any  warranty  is  imphed  by 
law  that  when  a  person  takes  furnished  rooms  the  proposed  tenant  is  fit  to 
occupy  them  —  in  other  words,  that  he  is  not  suffering  from  an  infectious 
disease.  It  is  admitted  that  there  is  no  case  in  the  books  to  support  the 
proposition  that  there  is  any  such  warranty.  No  doubt  when  persons  let 
rooms  a  warranty  is  implied  that  the  premises  are  fit  for  immediate  occupa- 
tion; that  is  the  result  of  the  decisions  in  Smith  v.  Marrahle,  11  M.  &  W. 
5.  and  Wilson  v.  Finch  Hatton,  2  Ex.  D.  336.  But  that  is  a  long;  way 
from  the  proposition  suggested  for  our  acceptance,  and  I  am  clearly  of  opinion 
that  there  is  no  foundation  in  law  for  the  argument  that  a  warranty  ought 
to  be  implied  from  the  intending  tenant.  If  such  a  warranty  is  to  be 
imposed,  it  must  be  imposed  by  statute.  I  agree  with  the  view  taken  by 
Darling,  J.,  and  think  that  this  appeal  must  be  dismissed.  [His  Lordship 
then  dealt  with  the  evidence  as  to  concealment  and  misrepresentation,  and 
came  to  the  conclusion  that  there  was  no  evidence  of  concealment  agamst 
Miss  Miller,  nor  of  misrepresentation  agamst  Dr.  Harboard.]  '  — Per  Swinfen 
Eady,  L.  J.,  in  Humphreys  v.  Miller,  [1917]  2  K.  B.  122,  124. 


SECT.    II ]  MOORE    V.    TOWNSHEND  239 

with  the  glass  manufactory  hiisiiiess  at  that  niamifaetory ;  to  hohj 
for  the  term  of  two  years  and  eight  months,  at  a  yearly  rent  of  one 
thousand  dollars.  The  lease  contained  a  covenant,  by  the  tenant, 
for  the  re-delivery  of  the  moulds  and  tools,  to  the  lessor,  at  the  ex- 
piration of  the  term,  in  as  good  condition  as  they  were  in  at  the  time 
of  the  demise,  reasonable  wear  and  tear  and  fire  excepted.  It  also 
contained  the  following  clause :  "  It  jaeing  understood  and  agreed 
between  the  said  parties  that  said  Moore  has  the  privilege  of  laying 
out  one  hundred  doUai's  per  year  in  repairs  on  said  property,  and 
deducting  the  same  from  the  rent."  There  was  no  other  covenant 
in  the  lease  on  the  subject  of  repairs.  It  was  shown,  at  the  trial, 
that  twenty-one  dollars  and  fifty  cents  had  been  expended  in  repairs 
during  the  continuance  of  the  lease,  of  which  sum  six  dollars  and 
ninety-five  cents  had  been  deducted  from  the  rent,  the  balance  of 
which  had  been  paid. 

The  jury  found  a  verdict  for  the  plaintiff,  and  assessed  his  damages 
at  five  hundred  and  fifty  dollars. 

A  rule  to  show  cause  why  a  new  trial  should  not  be  granted,  was 
allowed;  and  the  following  reasons  were  assigned  for  setting  aside 
the  verdict.  1.  Because  an  action  on  the  case  will  not  lie  against 
a  tenant  for  years  for  permissive  waste.  2.  Because  the  lease  be- 
tween the  parties  measures  and  limits  the  liability  of  the  tenant, 
in  the  matter  of  repairs. 

Depue,  J.  The  action  on  the  case,  in  the  nature  of  waste,  has 
almost  entirely  superseded  the  common  law  action  of  waste,  as  well 
for  permissive  as  for  voluntary  waste,  as  furnishing  a  more  easy 
and  expeditious  remedy  than  a  writ  of  waste.  It  is  also  an  action 
encouraged  by  the  courts,  the  recovery  being  confined  to  single 
damages,  and  not  being  accompanied  by  a  forfeiture  of  the  place 
w^asted. 

At  common  law,  waste  lay  against  a  tenant  in  dower,  tenant 
by  the  curtesy  and  guardian  in  chivalry,  but  not  against  lessees  for 
life  or  years.  2  Inst.  299,  305;  Co.  Lift.  54.  The  reason  of  this 
diversity  was,  that  the  estates  and  interests  of  the  former  were  created 
by  the  law,  and  therefore  the  law  gave  a  remedy  against  them,  but 
the  latter  came  in  by  the  act  of  the  owner  who  might  have  provided 
in  his  demise  against  the  doing  of  waste  by  his  lessee,  and  if  he  did 
not,  it  was  his  negligence  and  default.  2  Inst.  299 ;  Doct.  &  Shi.  ch. 
1,  p.  102.  This  doctrine  was  found  extremely  inconvenient  as  tenants 
took  advantage  of  the  ignorance  of  their  landlords,  and  committed 
acts  of  waste  with  impunity.  To  remedy  this  inconvenience  the 
statute  of  Marlbridge  (52  Hen.  3,  ch.  23)  was  passed.  But  as  the 
recompense  given  by  this  statute  was  frequently  inadequate  to  the 
loss  sustained,  the  statute  of  Gloucester  (6  Edw.  1,  ch.  5,)  increased 
the  nunishment  by  enacting  that  the  place  wasted  should  be  recovered, 
together  with  treble  damages.  1  (^iiiisr  Dif/.  119,  §  25,  26;  Sarl-rtf 
V.  Sackett,  8  Pich.,  p.  313,  per  Parker,  C.  J.     The  statute  of  Marl- 


240  MOORE    V.    TOWNSHEND  [CHAP.    VI 

bridge  is  in  the  following  words:  "Also  fcrniors^  during  their  terms, 
shall  not  make,  waste,  sale,  nor  exile  of  house,  woods,  and  men,  nor 
of  anything  belonging  to  the  tenements  that  they  have  to  form, 
without  special  license  had  by  writing  of  covenant,  making  mention 
that  they  may  do  it ;  which  thing,  if  they  do  and  thereof  be  convict, 
they  shall  yield  full  damage,  and  shall  be  punished  by  amercement 
grievously."  2  Inst.  145.  The  word  fermer  (firmarii)  in  this  statute 
comprehended  all  such  as  held  by  lease  for  life  or  lives,  or  for  years, 
by  deed  or  without  deed.  2  Inst.  145,  note  1,  and  also  devisees  for  life 
or  years.  2  Roll.  Abr.  826,  I.  35.  By  the  statute  of  Gloucester, 
"  it  is  provided,  also,  that  a  man,  from  henceforth,  shall  have  a 
writ  of  waste,  in  the  Chancery,  against  him  that  holdeth  by  law  of 
England  or  otherwise,  for  term  of  life,  or  for  term  of  years,  or  a 
woman  in  dower.  And  he  which  shall  be  attainted  of  waste,  shall 
leese  the  thing  that  he  hath  wasted,  and,  moreover,  shall  recompence 
thrice  so  much  as  the  waste  shall  be  taxed  at.  And  for  waste  made 
in  the  time  of  wardship,  it  shall  be  done  as  is  contained  in  the 
great  charter."  2  Inst.  299.  At  the  common  law,  a  tenant  at  will 
was  punishable  for  voluntary  waste,  but  not  for  permissive  waste. 
Countess  of  Salop  v.  Crompton,  Cro.  Eliz.  Ill,  784.  The  Countess 
of  Shrewsbury's  case,  5  Rep.  14;  Harnett  and  ^¥ife  v.  Maitland,  16 
M.  &  W.  258.  Tenants  in  dower,  by  the  curtesy,  for  life  or  lives, 
and  for  years,  were  included  in  the  statute  of  Gloucester.  Tenants 
at  will  were  always  considered  as  omitted  from  the  statute  of  Marl- 
bridge  as  well  as  from  the  statute  of  Gloucester,  and,  therefore,  con- 
tinued to  be  dispunishable  for  mere  permissive  waste,  and  punish- 
able for  voluntary  waste  by  action  of  trespass  as  at  common  law. 
The  reason  of  this  exemption  of  tenants  at  will  from  liability  for 
permissive  Avaste,  was  the  uncertain  nature  of  their  tenure  Avhich 
would  make  it  a  hardship  to  compel  them  to  go  to  any  expense  for 
repairs.  Their  exemption  from  the  highly  remedial  process  of  waste 
provided  by  the  statute  of  Gloucester,  is  attributable  to  the  fact  that 
the  owner  of  the  inheritance  might  at  any  time,  by  entry,  determine 
the  estate  of  the  tenant,  and  thus  protect  the  inheritance  from 
spoil  or  destruction. 

The  language  of  the  statute  of  Marlbridge  is,  "  shall  not  make 
{non  facient)  waste,"  and  in  the  statute  of  Gloucester,  in  speaking 
of  guardians,  the  words  used  are,  "he  which  did  waste"  (que  acera 
fait  waste).  The  settled  construction  of  these  statutes  in  the  English 
law  until  a  comparatively  recent  period  was,  that  ,they  included 
permissive  wastes  as  well  as  voluntary  waste.  In  a  note  in  expo- 
sition of  the  statute  of  Marlbridge,  Lord  Coke,  in  commenting  on  the 
words  "  non  facient,"  says :  "  To  do  or  make  waste,  in  legal  under- 
standing in  this  place,  includes  as  well  permissive  waste,  which  is 
waste  by  reason  of  omission  or  not  doing  as  for  want  of  repara- 
tion, as  waste  by  reason  of  commission,  as  to  cwX  down  timber,  trees, 
or  prostrate  houses,  or  the  like;  and  the  same  word  hath  the  statute 


SECT.    II  ]  MOORE    V.    TOWNSHEND  241 

of  Gloucester,  eh.  5,  qioe  aver  fait  waste,  aud  yet  is  understood  a& 
well  as  of  passive  as  active  waste,  for  he  that  sutfereth  a  house  to 
decay  which  he  ought  to  repair,  doth  the  waste."  2  Inst.  145;  7  Dae. 
Ahr.  250;  3  Bl.  Com.  225;  2  Saund.  252;  4  Kent  76.  So  under  the 
prohibition  to  do  waste,  the  tenant  is  held  to  be  bounden  for  the 
waste  of  a  stranger,  though  he  assented  not  to  the  doing  of  waste. 
Dod.  &  Stu.,  ch.  4,  p.  113;  2  Inst.  303;  Fay  v.  Brewer,  3  Pick.  203; 
1  Washhurn  R.  Prop.  116.  It  is  common  learning  that  every  lessee 
of  land,  whether  for  life  or  years,  is  liable  in  an  action  of  waste  to 
his  lessor,  for  all  waste  done  on  the  land  in  an  action  of  w^aste  to  his 
his  lessor,  for  all  waste  done  on  the  land  in  lease  by  whomsoever 
it  may  be  committed,  per  Heath,  J.,  in  AttersoU  v.  Stevens,  1  Taunt. 
198;  with  the  exception  of  the  acts  of  God,  public  enemies,  and 
the  acts  of  the  lessor  himself.  White  v.  Wagner,  4  Harr.  &  Johns. 
373;  4  Kent  77;  Heydon  and  Smith's  Case,  13  Coke  69.  The  in- 
stances in  the  earlier  reports  in  which  lessees  for  life  or  years,  were 
held  liable  for  permissive  waste,  which  consisted  in  injuries  resulting 
from  acts  of  negligence  or  omission,  are  quite  frequent;  and  their 
liability  is  grounded,  not  on  the  covenants  or  agreements  in  the  in- 
struments of  demise,  but  on  the  statute,  which  subjected  them  to  the 
action  of  -waste.  Griffith's  Case,  Moore  69,  No.  187;  Ih.  62,  No. 
173;  Ih.  73,  No.  200;  Keilway  206;  Darcy  v.  Askwith,  Hohart  234; 
Glover  v.  Pipe,  Given  92;  SDyer  281;  2  Roll.  Abr.  816  1,  40;  22 
Vin.  Ahr.  Waste  "  c"  and  "  d,"  p.  436-440,  443;  Co.  Litt.  52  a, 
53  h;  5  Com.  Dig.  Waste,  d  2,  d  4;  Bisselt  on  Estates,  299,  300'. 
So  uniformly  had  the  courts  determined  that  lessees  for  life  or  years, 
had  committed  waste  by  the  application  of  the  common  law  rules, 
with  respect  to  waste,  whether  of  omission  or  commission,  that  the 
learned  commentator  on  English  law  says,  "  that  for  above  five  hun- 
dred years  past,  all  tenants  merely  for  life,  or  for  any  less  estate, 
have  been  punishable  or  liable  to  be  impeached  for  waste,  both 
voluntary  and  permissive;  unless  their  leases  be  made,  as  some- 
times they  are,  Avithout  impeachment  of  waste."  2  Bl.  Com.  283. 
This  construction  of  the  statutes  of  Marlbridge  and  Gloucester  con- 
tinued to  be  received  without  dissent  until  the  decision  of  the  case  of 
Gibson  v.  Welts,  4  B.  &  P.  290,  in  the  year  1805  which  was  followed 
by  the  case  of  Heme  v.  Bembow,  4  Taunt.  764  (1813).  These  cases 
it  is  insisted  have  settled  the  construction  against  the  liability  of  a 
tenant  for  years  for  permissive  waste.  Gibson  v.  Wells,  is  not  an 
authority  for  this  position.  The  tenant  against  whom  the  action 
there  was  brought  was  a  tenant  at  will,  who  is  not  included  witliin  the 
statutes,  and  who,  at  common  law,  was  punishable  for  voluntary,  but 
not  for  permissive  waste.  In  Heme  v.  Bemhovj,  it  does  not  clearly 
appear  that  the  lease  was  for  a  term.  It  is  certain  that  tlie  opinion 
of  the  Court,  proceeded  upon  principles  applicable  to  tenants  at  will. 
As  the  case  is  reported  in  Taunton,  it  appears  to  have  l)een  decided, 
without  argument  or  consideration.     The  opinion  is  a  per  curiam 


242  MOORE    V.    TOWNSHEND  [CHAP.   VI 

opinion,  and  the  only  case  cited  is  the  Countess  of  SJirewshury's  Case, 
5  Co.  14,  which  was  a  case  of  a  tenancy  at  will. 

The  only  subsequent  case  which  sustains  these  cases  is  Torriano  v. 
Young,  6  C.  &  P.  8 ;  a  case  at  nisi  prius.  In  other  cases  where  Heme 
V.  Bembow  was  cited,  the  English  Courts  show  no  disposition  to  follow 
it.  In  Jones  v.  Hill,  7  Taunt.  392,  Gibbs,  C.  J.,  expressly  guards  him- 
self against  being  supposed  to  ^concur  in  the  position  that  an  action 
will  not  lie  against  a  lessee  for  years  for  permissive  waste.  In 
Martin  v.  Gilham,  7  ^4.  &  E.  540,  and  in  Beale  x.  Sanders,  3  Bing. 
N.  C.  850,  a  decision  of  that  question  is  avoided;  and  in  Harnett  v. 
Maitland,  16  M.  &  W.  256,  261,  Parke,  B.,  on  Gibson  v.  Wells, 
Heme  v.  Bemhoiv,  and  Torriano  v.  Young  being  cited,  intimates  an 
opinion  against  those  cases  as  necessarily  involving  the  result  that  a 
tenant  for  life  is  also  dispunishable  for  permissive  waste.  Text 
writers  of  acknowledged  authority  have  not  recognized  these  cases  as 
settling  the  law  against  the  older  cases  and  the  opinions  of  Coke  and 
Blackstone,  but  have  regarded  them  as  merely  throwing  a  doubt  upon 
a  principle  that  had  previously  been  set  at  rest.  2  Saund.  252  b,  note 
i;  Arch.  L.  &  T.  196,  7;  Smith  on  L.  &  T.  196;  Comyn  on  L.  &  T. 
495;  and  note  e;  2  Bouvier's  Law  Did.  645,  \Yaste,  §  14;  1  Wash- 
burn on  R.  Prop.  124,  and  note  1.  By  other  legal  writers  they  are 
doubted  or  condemned  as  unsound  in  principle.  Roscoe  on  Real 
Actions  385;  Ferrard  on  Fixtures  278,  281,  note;  1  Evans  Statutes 
193,  note;  Broom  on  Parties  257;  4  Kent  76,  79;  Elmes  on  Dilapida- 
tions 257. 

Independent  of  authority,  the  true  construction  of  the  statute  of 
Gloucester,  leads  to  the  conclusion  that  tenant  for  life  or  years,  was 
made  liable  for  permissive  as  well  as  voluntary  waste.  Before  either 
this  act  or  the  statute  of  Marlbridge  was  passed,  waste  was  recognized 
in  the  law,  as  an  injury  to  the  inheritance,  resulting  either  from  acts 
of  commission  or  of  omission.  Neither  of  these  statutes  created  new 
kinds  of  waste,  but  gave  a  new  remedy  for  old  wastes,  leaving  what 
was  waste,  and  what  not,  to  be  determined  by  the  common  law.  2 
Inst.  300;  and  by  the  statute  of  Gloucester  the  writ  of  waste  w^as 
suable  out  of  Chancery  as  well  against  lessee  for  life  or  years,  as 
against  tenant  by  the  curtesy,  or  in  dower,  putting  the  former,  as 
to  the  newly  created  remedy,  on  the  same  footing  as  the  latter.  ''  It 
hath  been  used  as  an  ancient  maxim  in  the  law,  that  tenant  by  the  cur- 
tesy, and  the  tenant  in  dower,  should  take  the  land  with  this  charge, 
that  is  to  say,  that  they  should  do  no  waste  themselves,  nor  suffer 
none  to  be  done ;  and  when  an  action  of  waste  was  given  after,  against 
a  tenant  for  term  of  life,  then  he  was  taken  to  be  in  the  same 
case,  as  to  the  point  of  waste  as  tenant  by  the  curtesy,  and  tenant  in 
dower  was,  that  is  to  say,  that  he  should  do  no  waste,  nor  suffer  none 
to  be  done."  Doct.  £  Stu.,  ch.  4,  p.  113.  No  distinction  can  be 
made  between  lessee  for  life  and  lessee  for  years.  Both  are  mentioned 
in  the  statute  cojointly ;  and  each  derives  his  interest  in  the  premises 
from  the  act  of  the  owner  of  the  inheritance. 


SECT.   II]  MOORE    V.    TOWNSHEND  243 

The  second  section  of  the  act  for  the  prevention  of  waste,  which 
is  in  force  in  this  state  (Nix.  Dig.,  Uh  ed.,  1022,)  provides  that  no 
tenant  for  life  or  years,  or  for  any  other  term,  shall  during  the  term 
make  or  suffer  any  waste,  sale  or  destruction  of  houses,  gardens, 
orchards,  lands,  or  woods,  or  anything  belonging  to  the  tenements  de- 
mised, without  special  license  in  writing,  making  mention  that  he 
may  do  it.  The  third  section  is  in  substance  the  same  as  the  statute 
of  Gloucester.  The  act  was  passed  in  1795.  The  use  of  the  words 
"  make  or  suffer,"  in  the  second  section,  which  are  equivalent  to 
Coke's  interpretation  of  facient  in  the  statute  of  Marlbridge,  mani- 
fests an  intent  to  adopt  as  the  law  of  this  state,  the  doctrine  of  the 
English  courts,  as  to  the  liability  of  tenants  for  life  or  years  for  per- 
missive waste,  which  Avas  universally  received  at  the  time  of  the 
passage  of  the  act. 

The  second  reason  assigned  involves  the  effect  of  the  lease  in  this 
action. 

Premising  that  the  act  or  omission,  to  constitute  waste  must  be 
either  an  invasion  of  the  lord's  property,  or  at  least  be  some  act  or 
neglect  which  tends,  materially,  to  deteriorate  the  tenement,  or  to 
destroy  the  evidence  of  its  identity;  (Burton's  Comp.  R.  Prop.  411; 
Doe  ex  clem.  Gruhh  v.  Earl  of  Burlington,  5  B.  <&  Ad.  507 ;  2  Saund. 
259  a,  note  o;  1  Pynchon  v.  Stearns,  11  Met.  304;  1  ^^'asllhurn  R. 
Prop.  108;)  and  that  the  action  is  founded  partly  upon  the  common 
law  and  partly  upon  the  statute,  and  does  not  depend  for  its  support 
on  any  covenants  of  the  tenant;  (22  Viner  Abr.  457,  Waste  M.  4; 
3  Bl.  Com.  227;  KinJyside  v.  Thornion,  2  W.  Black  1111;  Marker  v. 
Kenrick,  13  C.  B.  188;)  it  is  obvious  that  we  must  resort  to  the 
statute  for  the  conditions  on  which  the  tenant  is  excusable  for  the 
waste  done. 

There  is  a  class  of  cases  in  which  tenants  have  been  held  not  to  be 
liable  for  waste  resulting  from  non-repair  where  the  lessor  has  entered 
into  a  covenant  to  make  the  repairs  for  the  want  of  which  the  injury 
has  happened.  These  cases  go  upon  the  ground  that  the  injury  was 
caused  by  the  lessor's  own  default,  on  which  he  can  base  no  right  to 
recover.  There  is  no  such  covenant  in  the  lease  now  under  con- 
sideration. 

The  statute  forbids  waste  by  the  tenant  "  without  special  license, 
in  writing,  making  mention  that  he  may  do  it."  The  consent  of  the 
landlord  by  parol  will  not  be  sufficient  authority.  McGregor  v. 
Brown,  6  Seld.  114.  The  words  usually  employed  for  this  purpose 
are  "  without  impeachment  of  waste,"  but  any  words  of  equivalent 
import  will  be  sufficient,  provided  they  amount  to  a  license  to  do 
the  acts.  The  defendant,  to  hring  himself  within  tlie  statnte,  relics 
on  that  part  of  the  lease  wliich  rehites  to  the  re-deliverv  of  the 
personal  property  leased,  in  (•oiinection  with  ilic  sii|)nhilion  giving 
the  defendant  tlie  privilege  of  expending  a  ))ortion  ot  thi-  rent  in  each 
year  for  repairs.    The  covenant  as  to  the  personal  property  is  entirely 


244  THE    COUNTESS   OF   SHREWSBURY'S   CASE     [CHAP.   VI 

distinct  from  the  obligations  of  the  tenant,  with  respect  to  the  real 
estate.  The  privilege  of  expending  a  portion  of  the  rent  reserved 
in  repairs,  is  not  a  license  to  the  tenant  to  omit  a  duty  put  upon  him 
by  the  statute,  growing  out  of  the  relations  between  the  parties.  To 
construe  a  privilege  given  by  the  landlord  to  expend  his  money  in 
the  reparation  of  the  demised  premises,  as  a  license  to  the  tenant  to 
omit  his  duty,  to  the  spoil  or  destruction  of  the  inheritance,  would  be 
an  entire  subversion  of  the  obvious  intent  of  the  landlord.  If  it 
falls  short  of  a  license  for  the  act  complained  of,  it  does  qualify  or 
abridge  the  obligations  of  the  tenant  which  exist  independent  of  the 
provisions  of  the  lease. 

It  was  further  insisted  that  if  any  action  lies,  it  should  be  an 
action  ex'  contractu,  and  not  in  tort.  As  already  observed  the  grava- 
men of  the  action  is  the  breach  of  a  statutory  duty.  An  action 
on  the  case  founded  in  tort  will  lie  for  the  breach  of  a  duty  though 
it  be  such  as  that  the  law  will  imply  a  promise  on  which  an  action 
ex  contractu  may  be  maintained.  Brunnell  v.  Lynch,  5  B.  &  C.  589. 
To  the  same  effect  are  the  cases  of  K  inly  side  v.  Thornton  and  Marher 
V.  KenricJc;  already  cited,  in  which  it  Avas  held  that  an  action  on  the 
case  in  the  nature  of  waste,  will  lie,  although  the  act  complained  of 
might  also  be  the  subject  of  an  action  for  the  breach  of  an  express 
covenant.  Rule  discharged. 

Beasley,  Chief  Justice,  and   Justice  Dalbimple,  concurred.^ 


THE  COUNTESS  OF  SHEEWSBURY'S  CASE 
5  Co.  13a.     1600. 

The  Countess  of  Shrewsbury  brought  an  action  on  the  case  against 
Richard  Crompton  a  lawyer  of  the  Temple,  and  declared,  that  she 
leased  to  him  a  house  at  will,  <&  quod  ille  tarn  negligenter  &  improvide 
custodivit  ignem  suum,  quod,  dotnus  ilia  comhusta  fuit:  to  which  the 
defendant  pleaded  not  guilty,  and  was  found  guilty,  <&:c.  And  it  was 
adjudged  that  for  this  permissive  waste  no  action  lay,  against  the 
opinion  of  Brook  in  the  abridgement  of  the  case  of  48  E.  3.  25. 
Wast.  52.  And  the  reason  of  the  judgment  was,  because  at  the  com- 
mon law  no  remedy  lay  for  waste,  either  volunary  or  permissive 
against  lessee  for  life  or  years,  because  the  lessee  had  interest  in 

1  Suydam  v.  Jackson  54  N.  Y.  450;  Harnett  v.  Maitland,  16  M.  &  W.  257; 
Davies  v.  Davies,  38  Ch.  D.  499,  accord. 

In  the  following  cases  the  court  said  that  a  tenant  for  life  is  liable  for 
permissive  waste.  Miller  v.  Stiields,  55  Ind.  71.  77;  Stevens  v.  Rose,  69  Mich. 
259;  Wilson  v.  Edmonds,  24  N.  H.  517,  545;  Schulting  v.  Sctiulting,  41  N.  J. 
Eq.  130.  132;  Spernll  v.  Connor,  107  N.  C.  630.  636;  Harvey  v.  Harvey,  41 
Vt  373.    Contra,  In  re  Cartwright,  41  Ch.  D.  532. 

A  tenant  from  year  to  year  is  liable  for  permissive  waste.  Neivbold  v 
Brown,  44  N.  J.  L.  266.  See  Long  v.  Fitzimmons,  1  W.  &  S.  (Pa.")  530; 
Wedd  V.  Porter,  [1916]  2  K.  B.  91. 


SECT.    II ]  EARLE    V.   ARBOGAST   AND   BASTIAN  245 

the  land  by  the  act  of  the  lessor,  and  it  was  his  folly  to  make  snch 
lease,  and  not  restrain  him  by  covenant,  condition,  or  otherwise,  that 
he  should  not  do  waste.  So  and  for  the  same  reason,  a  tenant  at  will 
shall  not  be  punished  for  permissive  Avaste.  But  the  opinion  of 
Littleton  is  good  law,  fol.  (15)  152.  If  lessee  at  will  commits  volun- 
tary waste,  scil.  in  abatement  of  the  houses,  or  in  cutting  of  the  woods, 
there  a  general  action  of  trespass  lies  against  him.  For  as  it  is  said 
in  2  and  3  Phil.  &  Mar.  Dyer  122.  b.  when  tenant  at  will  takes  upon 
him  to  do  such  things  which  none  can  do  but  the  owner  of  the  land, 
these  amount  to  the  determination  of  the  will,  and  of  his  possession, 
and  the  lessor  shall  have  a  general  action  of  trespass  without  any 
entry:  and  there  15  E.  4.  20.  b.  is  cited,  that  if  a  bailee  of  goods  as 
of  a  horse,  &c.  kill  them,  the  bailor  shall  have  a  general  action  of 
trespass,  for  by  the  killing  the  privity  was  determined.  But  it  was 
agreed  that  in  some  cases,  when  there  is  a  confidence  reposed  in  the 
party,  the  action  upon  the  case  will  lie  for  negligence,  although  the 
defendant  comes  to  the  possession  by  the  act  of  the  plaintiff.  As 
12  E.  4.  13.  a.  b.  where  a  man  delivers  a  horse  to  another  to  keep  safe, 
the  defendant  equum  ilium  tarn  negligenter  custodivit,  quod  oh  de- 
fectum honce  custodice  interiif;  the  action  on  the  case  lies  for  this 
breach  of  the  trust.  So  2  H.  7.  11.  if  my  shepherd,  whom  I  trust 
with  my  sheep,  and  by  his  negligence  they  be  drowned,  or  otherwise 
perish,  an  action  upon  the  case  lies :  but  in  the  case  at  bar  it  was  a 
lease  at  will  made  to  the  defendant,  and  no  confidence  reposed  in  him ; 
wherefore  it  was  awarded,  that  the  plaintiff  take  nothing  by  her  bill.^ 


EAELE  V.  AEBOGAST  AND  BASTIAN 
180  Pa.  409.    1897. 

At  the  trial  it  appeared  that  the  premises  in  question  had  been 
leased  by  the  plaintiff  to  the  defendants  by  parol  for  one  year,  with 
no  agreement  to  repair  or  to  deliver  the  premises  in  good  order  and 
condition  at  the  end  of  the  term.  The  property  had  been  used  by  the 
lessor  as  a  soap  factory,  and  this  use  was  continued  by  the  defendants. 
The  only  new  appliance  which  the  defendants  used  was  a  rendering 
tank  which  exploded  and  caused  the  injuries  for  which  suit  was 
brought.  It  was  claimed  by  the  plaintiff  that  the  explosion  Avas 
caused  by  the  vent  pipe  of  the  tank  becoming  clogged.  It  was  also 
averred  by  him  that  the  tank  was  not  strong  enough  to  withstand 
the  pressure  of  steam  that  was  put  upon  it.- 
OriNioN  BY  Mr.  Justice  Fell,  March  22,  1S97: 
Generally  in  the  absence  of  an  express  covenant  on  the  subject  the 

1  Lothrop  v.  Thayer,  138  Mass.  466,  accord.    See  Means  v.  Cotton,  225 
Mass.  313,  319. 

2  The  report  of  the  charge  of  the  lower  court  is  omitted. 


246  EARLE    V.    ARBOGAST    AND    BASTIAN  [CHAP.    VI 

law  implies  a  covenant  on  the  part  of  the  lessee  so  to  tr(;at  the  de- 
mised |)remises  that  they  may  revert  to  the  lessor  unimpaired  except 
by  usual  wear  and  tear,  and  uninjured  by  any  wilful  or  negligent  act 
of  the  lessee.  The  implied  covenant  does  not  however  extend  to  the 
loss  of  buildings  by  fire,  flood  or  tempest,  or  enemies,  which  it  was 
not  in  the  power  of  the  lessee  to  prevent,  and  there  is  no  implied 
covenant  that  the  lessee  shall  restore  buildings  which  have  been 
destroyed  by  accident  without 7ault  on  his  part:  Jackson  and  Gross' 
Landlord  and  Tenant,  in  Pennsylvania,  sec.  964,  965 ;  Taylor's  Land- 
lord and  Tenant,  sec.  343;  Cooley  on  Torts,  p.  335;  Long  v.  Fitz- 
immons,  1  W.  &  S.  530;  United  States  v.  Bostwick,  94  U.  S.  53. 

Tenants  by  the  curtesy  and  in  dower  were  responsible  at  common 
law,  and  tenants  for  life  and  for  years  whose  estates  were  created 
by  the  acts  of  the  parties,  were  responsible  under  statute  as  for  per- 
missive waste  until  relieved  by  the  statute  of  6  Anne,  chap.  31,  where 
the  property  was  destroyed  by  unavoidable  accident,  not  the  act  of 
God  or  the  public  enemy.  The  statute  of  6  Anne,  chap.  31,  which  re- 
lieved the  tenant  from  liability  for  the  consequences  of  accidental 
fires  has  never  been  in  force  in  this  state,  and  it  has  been  formally 
adopted  by  feAv  if  any  of  the  other  states,  except  JSTew  Jersey.  Chan- 
cellor Kent,  4  Kent's  Com.  82  says :  "  Perhaps  the  universal  silence 
of  our  courts  upon  the  subject  of  any  such  responsibility  of  the  ten- 
ant for  accidental  fires  is  presumptive  evidence  that  the  doctrine  of 
permissive  waste  has  never  been  introduced  and  carried  to  that  extent 
in  the  common  law  jurisprudence  of  the  United  States."  In  U.  S. 
V.  Bostwick,  supra,  it  was  held  that  the  implied  covenant  of  the 
tenant  is  not  to  repair  generally,  but  so  to  use  the  property  as  to 
make  repairs  unnecessary  as  far  as  possible,  and  that  it  is  a  covenant 
against  voluntary  waste  only.  It  is  said  in  the  opinion  by  Waite, 
C.  J. :  "  It  has  never  been  so  construed  as  to  make  a  tenant  answ^er- 
able  for  accidental  damages  nor  to  bind  him  to  rebuild  if  the 
buildings  are  burned  down  or  otherwise  destroyed  by  accident."  The 
statement  in  the  opinion  in  Long  v.  Fitzimmons,  supra,  that  a 
tenant,  where  there  is  no  covenant  to  that  effect,  is  not  bound  to  re- 
store buildings  that  have  been  burned  down  or  become  ruinous  by 
other  accident  without  default  on  his  part  may  be  a  dictum  only,  but 
it  is  in  harmony  with  the  trend  of  decisions  of  the  courts  of  other 
states  and  of  the  federal  courts,  and  it  has  been  accepted  and  acted 
upon  by  the  courts  of  this  state,  and  it  is  a  correct  statement  of  the 
law. 

There  could  be  no  recovery  without  proof  of  the  defendants'  negli- 
gence, and  the  burden  of  proof  rested  upon  the  plaintiff.  The  lease 
was  in  parol,  for  one  year,  with  no  agreement  to  repair  or  to  deliver 
the  premises  in  good  order  and  condition  at  the  end  of  the  term.  No 
new  or  different  use  was  made  of  the  building  by  the  tenants.  It  w^as 
used  by  them  for  the  purpose  for  which  it  had  been  leased,  and  for 
which  it  had  been  fitted  with  machinery  and  used  by  the  lessor.    The 


SECT.    II  ]  WHITE    V.    WAGNER  247 

only  new  appliance  used  was  the  rendering  tank  which  exploded.  In 
the  use  of  the  property  leased  the  defendants  were  under  an  implied 
duty  not  to  negligently  injure  it.  The  standard  of  their  duty  was 
reasonable  care.  The  mere  fact  of  the  explosion  did  not  throw  upon 
them  the  burden  of  proving  that  they  were  not  negligent.  The 
burden  of  proof  was  with  the  plaintiff  throughout'  the  trial.  He  was 
not  bound  in  the  first  instance  to  prove  more  than  enough  to  raise 
a  presumption  of  negligence  on  the  part  of  the  defendants.  Proof 
of  the  explosion  and  of  the  attendant  circumstances  might  have  fur- 
nished sufHcient  ground  for  a  reasonable  inference  of  negligence  to 
have  made  out  a  prima  facie  case,  but  he  could  not  rest  his  case  upon 
a  bare  presumption  based  only  upon  the  fact  that  the  explosion 
occurred.  The  answers  to  the  third,  fourth  and  fifth  points  affirmed 
these  propositions  and  are  free  from  error. 

The  assignments  which  complain  of  the  charge  cannot  be  sustained. 
An  inadequate  presentation  of  the  case,  when  the  omission  to  charge 
leaves  the  jury  without  direction  on  important  questions  involved,  or 
plainly  tends  to  mislead  them,  is  ground  for  reversal.  In  this  case 
the  charge  was  clear  and  full.  The  omission  now  complained  of  was 
in  not  calling  the  attention  of  the  jury  to  some  features  of  the  case 
which  counsel  at  the  time  did  not  deem  of  sufficient  importance  to 
mention,  and  which  may  have  been  discovered  only  by  a  critical 
analysis  of  the  charge  made  since  the  trial. 

The  judgment  is  affirmed.^ 


WHITE  V.  WAGNER 
4  Har.  &  J.  (Md.)  373.     1818. 

This  was  an  action  of  trespass  on  the  case,  in  the  nature  of  waste. - 
1.  At  the  trial  it  was  admitted  that  the  defendant  was  tenant  of 
the  premises  in  question,  as  a  dwelling-house  under  the  plaintiff,  for 
a  year,  at  the  rent  of  $350,  and  that  no  covenants  or  agreement  were 
entered  into  by  the  parties  relative  to  repairs  of  the  premises,  or 
other  matters  relating  thereto,  other  than  such  as  are  implied  by 
law,  except  merely  the  agreement  to  let  the  premises  by  the  plaintiff 
to  the  defendant  for  a  year,  and  by  the  defendant  to  pay  the  said 
rent.  That  the  defendant  entered  into  possession  sometime  in  the 
month  of  May,  1812,  and  continued  therein  until  the  27th  of  June  of 
the  same  year,  when  a  large  armed  multitude  of  unknown  persons, 
being  residents  of  the  city  of  HaUimore.  or  of  this  state,  assembled 

'  Tenant's  liability  for  accidental  fires  not  due  to  his  negligence.  United 
States  V.  Bostwirk,  94  IT.  S.  53;  Wainscutt  v.  Silvers,  13  Ind.  497;  Levey  v. 
Dyess,  51  Miss.  501;  Sninpsnn  v.  Grogan,  21  R.  I.  174;  Maggort  v.  Hans- 
barger,  8  Leigh  (Va.)  532.    Sec  Mnrhrn  v.  Hooper,  73  Md.  342. 

-  The  pleadings  which  follow  aie  omitted. 


248  WHITE    V.    WAGNER  [CHAP.   VI 

and  combined  themselves  together  in  the  said  city  for  the  purpose  of 
pulling  down  the  said  house,  and  compelling  the  defendant  to  de- 
sist from  the  distribution  of  a  newspaper  called  The  Federal  Repub- 
lican, and  to  drive  the  defendant  from  the  said  city.  That  the 
mayor  of  the  city,  the  judges  of  the  court  of  oyer  and  terminer 
and  gaol  delivery  for  BalUmore  county,  and  other  civil  officers  of 
the  said  city  and  county,  being  informed  of  this  combination  and 
assemblage  of  an  armed  multitlide,  and  the  purposes  for  which  they 
were  so  assembled,  did,  by  all  such  ways  and  means  as  they  deemed 
best  calculated,  from  the  powers  they  possessed,  endeavour  to  pre- 
vent and  hinder  the  said  multitude  from  perpetrating  their  unlav/ful 
and  outrageous  purposes  as  aforesaid;  but  in  spite  of  all  the  efforts 
of  the  said  civil  officers,  and  by  a  power  wholly  incontrollable  and 
irresistible  by  the  said  officers,  or  by  the  defendant,  the  said 
armed  multitude  did  compel  the  defendant,  and  his  family,  for  the 
safety  of  their  lives,  to  fly  from  and  abandon  said  house  and  prem- 
ises, and  from,  the  said  city,  and  did  ruin,  spoil,  and  destroy  said 
house,  in  the  manner  as  stated  in  the  declaration.  The  plaintiff  then 
offered  evidence  to  prove,  that  after  the  defendant  took  possession 
of  the  said  house,  he  used  it  for  the  purpose  of  receiving  therein  a 
newspaper  called  The  Federal  Republican,  which  was  printed  in 
George  Town,  in  the  District  of  Columbia,  of  which  the  defendant 
was  an  editor  and  proprietor,  and  from  thence  to  distribute  the  same 
to  the  subscribers  to  the  said  paper,  who  resided  in  the  city  of  Balti- 
more; and  having  reason  to  believe  that  the  said  house  would  be 
attacked  by  a  lawless  armed  and  unknown  multitude,  if  the  said  paper 
was  received  and  distributed  therefrom,  he  collected,  in  a  peaceable 
and  lawful  manner,  a  number  of  armed  men  for  the  purpose  of  de- 
fending the  said  house  against  any  attack  which  might  be  made  there- 
on by  the  said  unknown  multitude  as  aforesaid ;  and  that  it  Avas  after 
the  introduction  of  the  said  armed  men  to  defend  the  house,  and  the 
commencement  of  the  distribution  aforesaid  therefrom,  that  the  said 
armed  multitude,  as  herein  before  stated,  attacked,  ruined  and  spoiled 
the  house.  To  the  admission  of  which  said  evidence,  under  the  pres- 
ent declaration,  the  defendant  objected.  But  the  Court,  [Bland  and 
Hanson,  A.  J.]  overruled  the  objection,  and  permitted  the  whole  of 
said  testimony  to  be  given  to  the  jury.     The  defendant  excepted. 

2.  The  defendant  then  moved  the  court  to  direct  the  jury,  that  if 
they  believed  the  facts  so  admitted  and  given  in  evidence,  that  then 
the  plaintiff  was  not  entitled  to  recover.  "Which  opinion  and  direc- 
tion the  Court  [Dorsey,  Ch.  J.]  gave  to  the  jury.  The  plaintiff  ex- 
cepted ;  and  the  verdict  and  judgment  being  against  her,  she  appealed 
to  this  court. 

Johnson,  J.  The  action  in  this  case  was  brought  in  Baltimore 
county  court,  to  recover  damages  for  a  dwelling-house  on  Charles 
street,  in  the  city  of  Baltimore,  which  was  materially  injured  during 
the  time  it  was  let  by  the  plaintiff  to  the  defendant. 


SECT,    II ]  WHITE    V.    WAGNER  249 

The  facts  as  they  present  themselves  on  the  bill  of  exceptions  are: 
(He  here  stated  the  case.) 

The  declaration  contains  two  counts,  the  one  an  action  on  the  case 
in  the  nature  of  waste,  the  other  on  an  implied  undertaking  to  re- 
store the  property  in  good  tenantable  repair,  alleging  as  the  breach 
the  destruction  of  the  property  by  the  defendant. 

Actions  of  the  present  nature  have  been  seldom  if  ever  brought  in 
this  state;  indeed  a  transaction  similar  to  the  present  never  before, 
and  it  is  greatly  to  be  deplored  ever  did,  and  it  is  hoped  never  will 
arise  again,  in  which  private  property  has  been  by  force  destroyed 
against  the  exertions  of  the  civil  authority,  collected  on  the  spur  of 
the  occasion  for  its  preservation.  But  as  the  property  has  been  de- 
stroyed, as  between  the  landlord  and  tenant,  the  question  is  who  must 
bear  the  burden  of  the  loss? 

In  forming  an  opinion  on  the  present  subject  it  is  not  necessary  to 
trace  the  law  of  waste,  as  it  existed  at  common  law,  or  as  changed  by 
the  statutes  of  Marlbridge  and  of  Gloucester;  it  is  sufficient  to  ob- 
serve, that  those  statutes  make  a  lessee  for  years  liable  to  the  action 
of  waste,  in  which  when  determined  against  the  tenant,  he  forfeited 
the  place  wasted,  and  was  compelled  to  pay  treble  damages. 

Waste,  va^tum,  is  a  spoil  or  destruction  in  houses,  &c.  to  the  dis- 
herison of  him  that  hath  the  remainder  or  reversion  in  fee  simple  or 
fee  tail.  The  removing  wainscot  floors,  or  other  things  once  fixed  to 
the  freehold,  is  waste.    Co.  Litt.  53.  4  Rep.  64.  2.  Blh,  281. 

Waste  is  voluntary,  a  crime  of  commission,  as  pulling  doAvn  a 
house;  or  permissive,  which  is  matter  of  omission  only,  as  by  suffer- 
ing it  to  fall  for  necessary  repairs. 

If  the  property  in  question  had  been  destroyed,  as  set  forth  in  the 
plaintiff's  claim,  by  the  defendant  himself,  or  by  others  at  his  instance, 
it  is  clear  he  made  himself  liable  to  an  action  of  waste;  wherein  not 
only  would  have  been  recovered  the  house  let,  (supposing  the  lease  not 
expired,)  but  treble  damages.  The  injury  done  to  the  property  would 
have  assumed  the  denomination  of  wilful  waste.  But  as  the  destruc- 
tion was  not,  in  the  common  acceptation  of  the  term,  made  by  him- 
self, or  by  others  at  his  instance,  is  he  liable  ? 

It  is  not  novel  in  the  law  to  make  persons,  morally  innocent,  respon- 
sible for  the  acts  of  those  over  whom  thoy  had  no  control.  In  vari- 
ous instances,  where  the  property  of  the  owner  is  placed  in  the  care 
of  another,  such  person  is  liable  to  the  owner  for  its  loss,  or  for  in- 
juries done  to  it,  which  the  possessor  could  not  restrain. 

The  common  carrier,  the  inn-keeper,  the  sheriff,  and  others  not 
thought  material  to  enumerate,  are  responsible  for  losses  which  they 
could  not  prevent.  They  stand  liable  to  the  owner  for  all  losses, 
whether  sustained  by  highway  robbers,  or  otliers,  no  matter  how  in- 
controllahle  and  irresistihle  may  be  the  force  with  Avhich  they  are 
assailed.  The  act  of  God,  and  of  the  public  enemies,  will  only  free 
them  from  the  demand,  when  the  loss  proceeded  from  such  act  or  such 
enemies,  and  then  only  when  they  nvc  free  from  every  exception. 


250  WHITE    V.    WAGNER  [CHAP.   VI 

If  the  law  was  otherwise,  by  conniving  with  the  robbers  and  thieves, 
no  property  could  be  safe  in  their  custody,  it  would  scarcely  ever  be 
in  the  owner's  power  to  ascertain  whether  the  loss  was  the  result  of 
concert,  or  of  force  —  whether  the  alleged  attack  might  or  might 
not  have  been  resisted.  To  free  them  from  all  temptation  to  swerve 
from  their  duty,  and  to  secure  an  eifectual  remed}^  to  those  who  in- 
trust them  with  their  property,  all  excuses  of  the  kind  spoken  of  are 
precluded;  for  it  is  better  that,  occasionally,  the  loss  should  fall  on 
an  innocent  person,  than  to  relax,  and  in  effect,  to  defeat  all  liability. 

At  the  common  law  all  such  as  were  liable  to  the  action  of  waste, 
no  matter  what  might  be  their  situation,  no  matter  w^hat  might  be  the 
power  to  repel  the  waste  from  being  done,  if  it  was  committed,  they 
were  bound  to  respond.  The  infant  age  of  the  tenant  would  not  free 
him  from  the  responsibility.  Under  the  statutes  of  Marlhridge  and 
Gloucester,  the  same  liabilities  are  cast  on  the  tenant  for  years. 

The  defendant,  in  the  case  before  the  court,  comes  within  the  pur- 
view of  those  statutes,  and  must  therefore  be  responsible,  unless  the 
overwhelming  force,  by  which  the  injury  was  done,  exonerates  him. 

As  the  property  of  the  landlord  is  placed  in  the  tenant's  possession, 
who  has  the  legal  power  to  prevent  all  waste  from  being  done  to  it, 
and  to  recover  for  it,  when  committed,  as  in  most  instances  it  would 
be  impossible  for  the  landlord  to  ascertain  in  time,  or  come  at  the 
wrongdoer,  it  appears  to  have  been  the  policy  of  the  law,  to  cast  the 
liability  on  the  part  of  the  tenant  for  all  waste  committed  on  the 
property,  except  when  caused  by  the  act  of  God,  or  of  the  king's 
enemies.  But  let  it,  for  argument's  sake,  be  conceded,  that  if  the 
defendant  had  continued  to  use  the  house  for  the  purpose  it  was  let 
to  him,  and  that  whilst  so  used,  the  lawless  multitude  attacked  and 
destroyed  it,  that  he  would  not  have  been  liable,  a  point  not  neces- 
sary to  he  determined  in  this  case;  yet  as  he  did  of  his  own  authority, 
without  the  consent  of  the  plaintiif,  divert  the  house  to  a  wholly  differ- 
ent and  much  more  dangerous  purpose,  well  aware  of  the  risk  which 
the  property  would  thereby  have  to  encounter,  on  principles  of  law 
and  justice,  as  between  him  and  the  plaintiff,  he  becomes  responsible 
for  the  consequences. 

If  the  common  carrier,  who  puts  to  sea  during  a  storm,  or  on  its 
approaching,  cannot  exonerate  himself  from  the  loss  the  storm  may 
produce,  which  he  attempted  to  buffet,  so  it  appears  equally  just  that 
a  tenant,  who  applies  the  property  to  a  different  purpose  than  it  was 
let  to  him,  aware  of  the  great  increase  of  risk,  in  consequence  of  such 
diversion,  7nust  hear,  and  not  cast  the  responsibility  on  the  landlord. 
My  opinion,  therefore,  is,  that  on  principles  of  law  and  justice,  the 
merits  of  the  case  are  with  the  plaintiff. 

The  action  of  waste  appears  to  have  given  way  to,  or  been  super- 
seded by,  the  action  on  the  case  in  nature  of  waste,  which  is  the  first 
count  in  the  present  declaration.  Two  grounds  have  been  relied  on 
against  the  first  count : 


SECT.    II ]  WHITE    V.    WAGNER  251 

1st.     That  the  evidence  does  not  support  the  count ;  and 
2d.     That  if  the  defendant  was  liable,  yet  as  the  ivaste  was  per- 
missive, and  not  voluntary,  an  action  on  the  case,  in  the  nature  of 
waste,  will  not  lie. 

The  declaration,  it  is  true,  states  the  destruction  of  the  property  to 
have  been  made  by  the  defendant,  and  by  those  taken  into  the  house 
by  him. 

In  common  parlance  a  person  cannot  be  said  to  have  done  an  act 
which  was  done  by  another;  nor  can  he  be  charged  with  causing 
a  destruction  to  take  place  when  every  exertion  in  his  power  was  used 
to  prevent  it.  But  in  the  legal  acceptance  of  the  charge,  he  who  does 
certain  acts,  by  others,  is  said  to  have  done  them  himself.  Qui  facit 
per  aliuin  facit  per  se.  If  the  tenant  is  generally  responsible  for  all 
waste  committed  by  strangers,  no  matter  how  overwhelming  the 
power,  how  much  more  strong  is  the  case  before  the  court,  when  the 
property  in  question  was  applied  to  a  different  object  that  that  for 
which  it  was  let  ;•  the  defendant  having  reason  to  believe  that  in  con- 
sequence of  such  application  "  the  house  would  be  attacked  by  a  law- 
less armed  and  unknown  multitude  "  —  As,  between  the  plaintiff  and 
defendant,  the  acts  of  the  multitude  produced  by  the  acts  of  the  de- 
fendant and  those  in  concert  with  him,  must  be  imputable  to  the  de- 
fendant himself,  and  of  course  the  charge,  as  contained  in  the  count, 
is  correct. 

The  second  objection  to  the  count  by  the  preceding  reasoning  is 
also  removed;  for,  if  the  defendant  is  to  be  liable  as  of  himself,  for 
the  waste  committed  by  the  lawless  multitude,  then  it  follows  that  the 
destruction  to  the  property  in  question,  conies  strictly  under  the  de- 
nomination of  voluntary  waste,  for  which,  no  doubt  is  entertained  but 
that  the  present  action  is  applicable.  It  would  then  appear  that  there 
is  no  need  to  form  an  opinion,  whether  the  action  on  the  case,  in  the 
nature  of  waste,  will,  or  will  not  lie  for  permissive  waste;  but  the 
inclination  of  my  mind  is,  that  that  action  will  be  sustained  as  well 
for  the  one  as  for  the  other  description  of  waste.  It  is  a  form  of 
action,  long  since  introduced,  to  recover  for  such  injuries;  it  is  an 
equitable  action,  and  ought  not  to  be  discountenanced ;  it  confines  the 
recovery  to  the  real  loss  sustained ;  and  I  see  no  reason  to  say  that 
it  will  not  lie  in  all  cases,  and  against  all  persons,  who  are  at  common 
law,  or  under  the  statutes  of  Marlhridge  and  Gloucester,  made  liable 
to  the  action  of  ivaste. 

As  the  case  is  covered  by  the  first  count  in  the  declaration,  I  deem 
it  totally  unnecessary  to  add  whether  the  evidence  sustains  the  second. 

The  opinion  of  the  court  below,  as  pronounced  on  the  second  bill 
of  exceptions  is  erroneous,  and  the  judgment  obtained  in  consequence 
thereof  is  reversed. 

Martin,  J.,  dissented. 

Judgment  reversed,  and  procedendo  awarded. 


252  CODMAN    V.    AMERICAN    PIANO    CO.  [CHAP.   VI 

FAY  V.  BREWER 
3  Pick.  (Mass.)  203.    1825. 

Action  on  the  case  in  the  nature  of  waste,  for  cutting  down  trees. ^ 
The  defendant  offered  to  prove  that  the  trees  were  cut  down  by 
other  persons,  mere  trespassers,'  without  his  consent  or  knowledge. 

Per  Curiam.  It  is  clear  that  a  tenant  for  life  is  bound  to  see 
that  trespassers  do  not  injure  the  state,  and  for  this  purj)ose  the 
law  gives  him  an  action  of  trespass.  So  that  whether  waste  is  com- 
mitted by  himself  or  by  a  stranger,  he  is  alike  answerable  to  the 
reversioner.^ 


CODMAN  AKD  OTHERS  v.  AMERICAN  PIANO  CO. 

229  Mass.  285.    1918. 

Contract  by  the  trustees  of  the  Municipal  Real  Estate  Trust,  a 
voluntary  association,  as  the  lessors  under  a  lease  in  writing  dated 
May  24,  1912,  of  certain  real  estate  numbered  169  on  Tremont  Street 
in  Boston  against  the  lessee  thereunder  to  recover  $266.67  wath  in- 
terest thereon,  as  being  the  amount  of  federal  income  taxes  taxes  paid 
by  the  plaintiffs  upon  the  rent  received  by  them  as  income  from  the 
leased  premises  and  alleged  to  be  payable  by  the  defendant  as  lessee 
under  the  terms  of  the  covenant  to  pay  taxes,  which  is  quoted  in  the 
opinion.    Writ  dated  July  31,  1917. 

In  the  Superior  Court  the  case  was  submitted  to  Brown,  J.,  as  a 
case  stated  by  agreement.  At  the  request  of  the  parties  the  judge, 
without  making  any  decision,  reported  the  case  for  determination  by 
this  court  upon  the  pleadings  and  the  case  stated. 

Crosby,  J.  Upon  the  case  stated  it  appears  that  the  defendant  in 
1912  entered  into  a  written  indenture  of  lease  with  Paul  M.  Hamlen 
and  Miriam  P.  Loring  as  lessors  whereby  they  demised  certain  prem- 
ises to  the  defendant  for  a  long  time  at  a  rental  therein  recited.  The 
plaintiffs  are  trustees  of  a  voluntary  association  which  succeeded  to 
the  rights  of  the  original  lessors  under  the  lease.  The  lease  contains 
the  following  covenant :  (b)  "And  the  lessee  further  covenants  and 
agrees  with  the  lessors  to  pay  punctually  within  fourteen  (14)  days 
from  the  times  when  they  become  due  and  payable  all  taxes  and 
assessments  whatsoever  which  may  be  payable  for  or  in  respect  of 

1  The  statement  of  facts  and  the  opinion  are  abbreviated. 

2  Parrott  v.  Barney,  Fed.  Cas.  10773a;  Cargill  v.  Sewall,  19  Me.  288.  291; 
Wood  V.  Griffin,  46  N.  H.  230;  Dix  v.  Jacquay,  94  N.  Y.  App.  Div.  554;  Regan 
V.  Luthy,  16  Daly  (N.  Y.)  413;  Powell  v.  Dayton  R.  R  Co.,  16  Oreg.  33. 
accord.  Compare  Foot  v.  Dickinson,  3  Met.  (Mass.)  611;  Rogers  v.  Atlantic, 
G.  &  P.  Co.,  213  N.  Y.  246;  Winfree  v.  Jones,  104  Va.  39. 


SECT.   II  ]  CODMAN    V.    AMERICAN    PIANO   CO.  253 

the  leased  premises  during  the  term  thereof,  except  assessments  for 
betterments  hereinafter  arranged  for." 

Under  the  terms  of  the  federal  income  tax  enacted  October  3,  1913, 
entitled  "An  Act  to  reduce  tariff  duties  and  to  provide  revenue  for 
the  Government,  and  for  other  purposes,"  the  association  under  §  2, 
paragraph  G  (a)  was  subject  in  each  of  the  years  1914,  1915,  and 
1916  to  a  tax  of  one  per  cent  upon  its  entire  income  arising  or  accru- 
ing from  all  sources  during  the  preceding  calendar  year.  In  each  of 
the  years  above  referred  to  a  tax  at  the  rate  of  one  per  cent  was  duly 
assessed  upon  the  association's  entire  net  income^  which  assessments 
have  been  paid  by  the  association  in  accordance  with  the  terms  of 
the  act.  The  plaintiffs  seek  in  this  action  to  recover  the  amount  of 
the  taxes  so  paid  upon  the  amount  of  the  rent  reserved  in  the  lease 
and  paid  by  the  defendant  to  the  association.  The  income  tax  act, 
under  which  the  taxes  were  levied  and  paid,  contains  the  following 
provisions : 

"A.  Subdivision  1.  There  shall  be  levied,  assessed,  collected  and 
paid  annually  upon  the  entire  net  income  arising  or  accruing  from 
all  sources  in  the  preceding  calendar  year  to  every  citizen  of  the 
United  States,  whether  residing  at  home  or  abroad,  and  to  every 
person  residing  in  the  United  States,  though  not  a  citizen  thereof, 
a  tax  of  1  per  centum  per  annum  upon  such  income  .  .  ." 

"E.  .  . 

"  The  provisions  of  this  section  relating  to  the  deduction  and 
payment  of  the  tax  at  the  source  of  income  shall  only  apply  to 
the  normal  tax  hereinbefore  imposed  upon  individuals." 

"  G.  (a)  The  normal  tax  hereinbefore  imposed  upon  individuals 
likewise  shall  be  levied,  assessed,  and  paid  annually  upon  the  entire 
net  income  arising  or  accruing  from  all  sources  during  the  preceding 
calendar  year  to  every  corporation,  joint-stock  company  or  associa- 
tion, and  every  insurance  company,  organized  in  the  United  States, 
no  matter  how  created  or  organized,  not  including  partnerships;  .  .  ." 

It  is  agreed  that  the  plaintiffs  are  an  "  association  "  as  that  word 
is  used  in  paragraph  G  (a),  and  that  the  defendant  paid  to  the 
association  the  full  rent  in  the  amounts  and  at  the  times  specified 
by  the  lease,  and  did  not  withhold  the  federal  income  tax  of  one 
per  cent. 

The  question  then  is  whether  the  defendant  is  liable  to  indemnify 
and  pay  to  the  plaintiff's  the  amount  of  the  taxes  upon  the  rents  so 
paid  by  the  plaintiffs  to  the  federal  government.  It  is  the  contention 
of  the  plaintiffs  that  the  defendant  is  liable  under  the  covenant  in 
the  lease  above  quoted,  and  that  the  case  is  governed  by  Siiter  v. 
Jordan  Marsh  Co.  225  Mass.  34,  and  bv  Pollock  v.  Farmers'  Loan 
&  Trust  Co.  157  U.  S.  429;  S.  C.  158  U.  S.  601. 

This  contention  requires  us  to  consider  what  these  cases  actually 


254  CODMAN    V.    AMERICAN    PIANO    CO.  [CHAP.   VI 

decided  so  far  as  they  have  any  bearing  upon  the  issue  presented  in 
the  case  at  bar. 

The  case  of  Suter  v.  Jordan  Marah  Co.  decided  that  where  the  de- 
fendant was  required  to  withhold  and  pay  and  did  so  withhold  and 
pay  to  the  United  States,  under  the  federal  income  tax  law,  para- 
graph E  of  §  2  above  referred  to,  the  "  normal "  income  tax  on 
certain  rents  reserved  in  a  lease  given  by  it  to  the  plaintiffs,  the 
defendant  could  not  deduct  the  amount  of  such  payment  from  the 
amount  of  the  rent  which  it  paid  to  the  lessors.  The  lease  in  that 
case  contained  a  covenant  that  the  lessee  should  pay  "  all  taxes  and 
assessments  whatsoever,  except  betterment  taxes,  which  may  be  levied 
for  or  in  respect  of  the  said  leased  premises,  or  any  part  thereof,  or 
upon  or  in  respect  of  the  rent  payable  hereunder  by  the  Lessee  how- 
soever and  to  whomsoever  assessed."  It  is  to  be  noted  that  the  cove- 
nant required  the  lessee  to  pay  the  taxes  not  only  for  or  in  respect 
to  the  premises  leased,  but  also  "  upon  or  in  respect  of  the  rent  pay- 
able "  under  the  lease.  Accordingly  it  was  said  by  this  court  that 
"  by  the  terms  of  the  lease,  the  defendant  has  obligated  itself  to  pay 
'  all  taxes  and  assessments  .  .  .  upon  or  in  respect  of  the  rent  .  .  . 
howsoever  and  to  whomsoever  assessed.'  The  setting  forth  of  the  de- 
fence shows  that  it  cannot  prevail."  In  other  words,  the  agree- 
ment of  the  parties  as  expressed  in  the  lease  is  to  govern  and  control 
their  respective  rights  in  view^  of  the  language  employed. 

In  the  case  at  bar  the  covenant  in  the  lease  contains  no  agreement 
that  the  lessee  will  pay  taxes  assessed  upon  or  in  respect  of  rent  pay- 
able under  the  lease,  and  so  is  clearly  distinguishable  from  the 
case  of  Suter  v.  Jordan  Marsh  Co.  supra. 

The  case  of  Pollock  v.  Farmers  Loan  &  Trust  Co.  157  U.  S.  429, 
dealt  with  the  federal  income  tax  law  of  1894,  and  decided  that  a  tax 
levied  upon  rents  or  income  received  from  real  estate  was  a  direct 
tax  and  was  unconstitutional  because  not  levied  in  accordance  with 
the  constitutional  rule  of  apportionment.  In  coming  to  the  conclu- 
sion that  a  tax  upon  the  rents  or  the  income  from  real  estate  was 
a  direct  tax,  the  court  said  at  page  581,  ''An  annual  tax  upon  the 
annual  value  or  annual  user  of  real  estate  appears  to  us  the  same 
in  substance  as  an  annual  tax  on  the  real  estate,  which  would  be 
paid  out  of  the  rent  or  income."  Accordingly  it  was  held  that  a 
tax  upon  such  rents  was  as  much  a  direct  tax  as  a  tax  upon  the  land 
itself. 

When  the  case  was  heard  in  re-argument,  158  U.  S.  601,  the 
previous  decision  on  this  point  was  reaffirmed  in  the  following 
language  at  page  637 :  "  We  adhere  to  the  opinion  already  an- 
nounced, that,  taxes  on  real  estate  being  indisputably  direct  taxes, 
taxes  on  the  rents  or  incomes  of  real  estate  are  equally  direct  taxes." 

The  decision  in  the  Pollock  case  that  a  tax  on  rents  of  real  estate 
is  a  direct  tax,  and  that  therefore  the  federal  income  law  which  pro- 
vided for  a  tax  upon  such  rents  was  unconstitutional,  related  only' 


SECT.    II  ]  CODMAN    V.    AMERICAN    PIANO    CO.  255 

to  the  constitutional  power  of  Congress  to  tax  incomes.  The  court 
did  not  consider  or  decide  that  a  tax  on  rent  was  a  tax  for  or  in 
respect  to  the  premises  from  which  the  rent  was  derived.  That 
is  a  wholly  different  question. 

On  rehearing  of  the  Pollock  case  the  court  at  page  61S  expressly- 
limited  its  judgment  in  the  following  words :  "  Our  previous  de- 
cision was  confined  to  the  consideration  of  the  validity  of  the  tax 
on  the  income  from  real  estate,  and  on  the  income  from  municipal 
bonds.  The  question  thus  limited  was  whether  such  taxation  was 
direct  or  not,  in  the  meaning  of  the  Constitution ;  and  the  court 
went  no  further,  as  to  the  tax  on  the  income  from  real  estate,  than 
to  hold  that  it  fell  within  the  same  class  as  the  source  Avhence  the 
income  was  derived,  that  is,  that  a  tax  upon  the  realty  and  a  tax 
upon  the  receipts  therefrom  were  alike  direct."  Neither  the  Suter 
case  nor  the  Pollock  case  decides  the  question  presented  in  the 
present  case,  and  therefore  do  not  support  the  plaintiffs'  contention. 

When  rent  from  land  has  become  due,  it  is  personal  property; 
it  is  a  chose  in  action  and  does  not  pass  by  a  conveyance  of  "the 
land.    Burden  v.  Thayer,  3  Met.  76. 

If  a  lessor  dies  during  the  term,  the  rents  accrued  during  his 
lifetime  are  personal  property  and  pass  to  his  administrator,  while 
rents  that  accrue  after  his  death  go  to  his  heirs,  or  to  whoever 
may  be  entitled  to  the  real  estate  subject  to  the  demise.  ClarJc  v. 
Seagraves,  186  Mass.  430,  439. 

So  rent  from  real  estate  which  has  accrued  is  held  to  be  taxable 
at  the  domicil  of  the  lessor,  Old  Dominion  Steamship  Co.  v.  Virginia, 

198  U.  S.  299,  while  the  real  estate  from  which  rent  is  derived  is 
taxable  at  its  situs.     Union  Refrigerator  Transit  Co.  v.  Kentucky, 

199  U.  S.  194. 

In  this  Commonwealth  taxes  upon  real  estate  are  assessed  to  the 
owner  or  person  who  is  in  possession  on  the  first  day  of  April.  St. 
1909,  c.  490,  Part  I,  §  15.  St.  1914,  c.  198,  §  2.  St.  1915,  c.  237, 
§  23. 

In  determining  whether  the  language  of  the  covenant  in  the  lease 
in  question  is  sufficiently  comprehensive  to  impose  upon  the  lessee 
the  obligation  to  indemnify  the  lessors  who  have  paid  the  taxes  under 
tlie  tariff  act  of  1913  depends  upon  the  construction  of  the  phrase 
"  for  or  in  respect  of  the  said  leased  premises."  These  words  are 
to  be  interpreted  in  accordance  with  their  natural  and  ordinary 
meaning.  Manifestly  taxes  upon  the  real  estate  come  within  the 
terms  of  the  covenant.  It  is  equally  clear  that  taxes  for  betterment 
assessments  under  such  a  covenant  would  have  to  be  paid  by  the 
lessee  unless  otherwise  stipulated  in  the  lease. 

On  the  other  hand,  we  cannot  construe  the  phrase  in  question  as 
including  within  its  terms  a  tax  assessed  by  the  federal  government 
to  the  lessor  upon  the  rents  reserved  under  the  lease.  Such 
an  assessment  is  upon   aii   entirely  distinct  kind   of  property  than 


256  CODMAN    V.    AMERICAN    PIANO    CO.  [CHAP.   VI 

is  the  assessment  upon  the  real  estate.  While  under  tlie  federal  in- 
come tax  law  a  tax  on  rent  is  a  tax  on  land  and  so  a  direct  tax, 
yet  a  tax  on  land  is  not  a  tax  on  rent;  the  defendant  did  not  cove- 
nant to  pay  taxes  for  or  in  respect  of  the  rent ;  his  undertaking  is 
to  pay  the  taxes  for  or  in  respect  of  the  premises.  The  covenant 
obligated  the  lessee  to  pay  the  taxes  upon  the  real  estate  but  not 
upon  the  income  in  the  form  of  rent  wliich  arose  therefrom. 

In  construing  the  covenant,  it  is  plain  that  taxation  upon  real 
estate  means  one  thing,  and  taxation  upon  income  means  another. 

Under  a  covenant  in  a  lease  substantially  like  that  under  con- 
sideration, it  was  held  that  it  did  not  include  a  tax  upon  the  rent 
reserved.     Van  Rensselaer  v.  Dennison,  8  Barb.  23. 

In  Woodruff  v.  Oswego  Starch  Factory,  70  App.  Div.  (N.  Y.) 
481,  affirmed  in  177  N.  Y.  23,  it  was  held  that  it  would  not  be  a 
natural  or  reasonable  construction  of  a  similar  covenant  to  inter- 
pret it  as  including  a  tax  upon  the  rents  reserved  under  the  lease. 
In  that  case,  the  court  uses  this  language :  "  Plaintiffs  would  be 
assessed  in  respect  of  the  demised  premises,  and  it  would  become 
the  duty  of  the  defendant  to  protect  them  and  the  premises  against 
such  assessment  by  paying  the  tax  thereon.  But  when  we  pass 
beyond  this  class  of  assessments  and  assume  one  made  against 
the  lessor  upon  his  income  or  rents  received  under  a  lease,  and 
otherwise  in  no  manner  based  upon  or  measured  by  the  lands  leased, 
their  value,  character  or  condition,  it  seems  to  us  that  it  would  be 
a  strained  construction  to  say  that  such  tax  was  on  account  of,  re- 
lating to,  or  '  in  respect '  of,  the  demised  premises,  within  the  mean- 
ing of  the  covenant."  Codman  v.  Johnson,  104  Mass.  491.  Twycross 
V.  Fitchhurg  Railroad,  10  Gray,  293. 

The  argument  that  the  lessors,  under  the  covenant  in  the  lease, 
intended  that  the  amount  of  rent  reserved  should  be  the  net  income 
to  be  received  by  them  from  the  property  demised  cannot  prevail 
unless  such  intention  appears  from  the  language  which  the  parties 
saw  fit  to  employ.  It  would  seem  to  us,  as  was  said  in  Woodruff  v. 
Oswego  Starch  Factory,  supra,  to  be  "  a  strained  construction  to 
say  that  such  tax  was  .  .  .  within  the  meaning  of  the  covenant." 
Robinson  v.  Alleghany  County,  7  Barr,  161,  163.  Cafaivissa  Rail- 
road V.  Philadelphia  &  Reading  Railway,  255  Penn.  St.  269,  271. 
Northern  Trust  Co.  v.  Bud:  &  Raynor,  263  111.  222. 

We  have  examined  all  the  cases  cited  in  the  elaborate  brief  filed 
by  the  counsel  for  the  plaintiffs.  The  early  English  cases  so  cited 
must  be  held  to  stand  upon  the  facts  peculiar  to  each  which  dis- 
tinguish them  from  the  case  at  bar.  For  instance,  those  cases  which 
relate  to  church  rates,  poor  rates,  tithes  and  subsidies  are  all  decided 
upon  the  language  of  the  covenants  with  which  they  respectively  deal, 
and  do  not  seem  to  us  to  be  in  conflict  with  the  conclusion  which 
we  have  reached,  nor  do  we  find  anything  in  the  reasoning  of  any 
of  the  cases  cited  and  relied  on  by  the  plaintiffs  to  the  contrary. 


SECT.    Il]        UNIVERSITY    CLUB,    CHICAGO    V.    DEAKIN  257 

It  may  readily  be  conceded  that  a  tax  "  on  "  or  "  for  "  or  "  in 
respect  of "  least^d  premises  means  tlie  same  thing,  and  that  no 
sound  distinction  exists  between  them. 

What  is  meant  by  taxes  for  or  "  in  respect  of  "  the  leased  prem- 
ises ?  The  legal  signification  clearly  is  that  the  taxes  are  those  which 
relate  directly  to  the  premises  themselves  and  not  to  the  rent  re- 
served which,  when  due,  is  a  separate  and  independent  estate.  The 
fundamental  fact  on  which  the  rights  of  the  parties  depend  is  that 
the  defendant  never  agreed  to  pay  the  taxes  on  the  rent.  In  Cata- 
wissa  Railroad  v.  Philadelphia  &  Reading  Railway,  255  Penn.  St. 
269,  it  was  said,  "  The  income  tax  was  not  imposed  by  the  govern- 
ment upon  '  the  demised  premises  or  any  part  thereof.'  ...  It  was 
imposed  upon  rental  received  by  the  lessor  from  the  lessee."  The 
words  chosen  by  the  parties  cannot  fairly  be  extended  by  us  beyond 
their  natural  or  ordinary  meaning,  and  therefore  the  defendant  can- 
not be  held  liable  for  taxes  which  the  covenant  neither  by  express 
words  nor  reasonable  implication  obliged  him  to  pay.  Smith  v. 
Ahington  Savings  Bank,  165  Mass.  285.  Millard  v.  Monk,  179 
Mass.  22.  Van  Rensselaer  v.  Dennison,  8  Barb.  2;?.  Woodruff  v. 
Osivego  Starch  Factory,  177  N.  Y.  23.  Williams  v.  Delairare,  Lacl-a- 
wanna  &  Western  Railroad,  240  Penn.  St.  234.  Tennant  v.  Smith, 
[1892]  A.  C.  150. 

In  accordance  with  the  terms  of  the  report,  the  entry  must  be 

Judgment  for  the  defendant.'^ 


THE  UNIVERSITY  CLUB  OF  CHICAGO  v.  DEAKIN" 

265  111.  257.     1914. 

Mr.  Justice  Cooke  delivered  the  opinion  of  the  court : 
Defendant  in  error,  the  University  Club  of  Chicago,  brought 
suit  in  the  municipal  court  of  Chicago  against  Earl  H.  Deakin, 
the  plaintiff  in  error,  to  recover  rent  alleged  to  be  due  under  a  lease. 
A  trial  was  had  before  the  court  without  a'  jury  and  resulted  in  a 
judgment  for  $2007.66.  Deakin  prosecuted  an  appeal  to  the  A])pel- 
late  Court  for  the  First  District,  where  the  judgment  of  the  munici- 
pal court  was  affirmed.  A  writ  of  certiorari  having  been  granted  by 
this  court,  the  record  has  been  brought  here  for  review. 

On  March  31,  1909,  defendant  in  error  leased  to  plaintiff  in  error, 
for  a  term  of  one  year,  a  store  room  in  its  building  at  the  corner  of 
Michigan  avenue  and  Monroe  street,  in  the  city  of  Chicago,  at  a 
rental  of  $5000  for  the  year.  The  lease  provided  that  plaintiff  in 
error  should  use  the  room  for  a  jewelry  and  art  shop  and  for  no 

1  Compare  Northern  Trust  Co.  v.  Buck,  263  111.  222;  Des  Moines  Ry.  Co. 
V.  Chicago  Ry.  Co.,  188  Iowa  1019;  Kimball  v.  Cotting,  229  Mass.  541;  Park 
Building  Co.  v.  Yost  Fur  Co.,  208  Mich.  349. 


258  UNIVERSITY    CLUB,    CHICAGO    V.    DEAKIN      [CHAP.    VI 

other  purpose.  It  also  contained  the  following  clause,  numbered  12: 
"  Lessor  hereby  agrees  during  the  term  of  this  lease  not  to  rent 
any  other  store  in  said  University  Club  building  to  any  tenant  mak- 
ing a  specialty  of  the  sale  of  Japanese  or  Chinese  goods  or  pearls." 
Shortly  after  this  lease  was  made  defendant  in  error  leased  to  one 
Sandberg,  for  one  year,  a  room  in  the  University  Club  building, 
two  doors  from  the  corner,  at  a  rental  of  $2500.  The  following  pro- 
vision was  inserted  in  the  Sandberg  lease :  "  It  is  further  distinctly 
understood  and  agreed  by  and  between  the  parties  hereto  that  at 
no  time  during  the  term  of  this  lease  will  the  lessee  herein  use  the 
demised  premises  for  a  collateral  loan  or  pawnshop  or  make  a  spe- 
cialty therein  of  the  sale  of  pearls."  On  May  1,  1909,  being  the  first 
day  of  the  term  of  the  lease,  plaintiff  in  error  took  possession  of  the 
premises  and  thereafter  paid  the  rent,  in  monthly  installments,  for 
May  and  June.  During  the  latter  part  of  June  plaintiff  in  error, 
through  his  attorney,  sought  to  obtain  from  defendant  in  error 
a  cancellation  of  his  lease  on  the  ground  that  by  leasing  a  room  in 
the  University  Club  building  to  Sandberg  and  permitting  him  to 
display  and  sell  pearls  therein  defendant  in  error  had  violated 
the  provision  of  plaintiff  in  error's  lease  above  quoted,  and  that  for 
such  violation  plaintiff  in  error  was  entitled  the  terminate  the  lease. 
Defendant  in  error  refused  to  cancel  the  lease,  and  on  June  30 
plaintiff  in  error  vacated  the  premises-,  surrendered  the  keys  and 
refused  to  pay  any  further  installments  of  rent.  This  suit  was 
brought  to  enforce  payment  of  subsequent  installments  of  rent  accru- 
ing under  the  lease  for  the  time  the  jiremises  remained  unoccupied 
after  June  30. 

The  evidence  offered  by  plaintiff  in  error  tended  to  show  that 
Sandberg  made  a  specialty  of  the  sale  of  pearls  in  connection  with 
the  conduct  of  his  general  jewelry  business  ever  since  he  took  pos- 
session of  the  room  leased  to  him,  and  that  plaintiff  in  error  vacated 
the  premises  and  surrendered  possession  because  of  the  failure  of 
defendant  in  error  to  enforce  the  twelfth  clause  of  his  lease.  The 
evidence  offered  by  defendant  in  error  tended  to  prove  that  Sand- 
berg had  not  made  a  specialty  of  the  sale  of  pearls,  and  that  when 
plaintiff  in  error  first  made  known  his  desire  to  assign  or  cancel 
his  lease  he  gave  as  his  only  reason  that  his  health  was  failing  and 
that  he  had  been  advised  by  his  physician  to  leave  the  city  of 
Chicago. 

Propositions  were  submitted  to  the  court  by  both  parties  to  be 
held  as  the  law  of  the  case.  The  court  held,  at  the  request  of  plain- 
i?'  tiff  in  error,  that  the  lease  sued  upon  was  a  bi-lateral  contract,  and 
upon  a  breach  of  an  essential  covenant  thereof  by  the  lessor  the 
lessee  had  a  right  to  refuse  further  to  be  bound  by  its  terms  and 
to  surrender  possession  of  the  premises,  and  that  a  breach  of  the 
twelfth  clause  of  the  lease  would  be  a  good  defense  to  an  action 
for    rent    if    the    tenant    surrendered    possession    of    the    premises 


:^7lK- 


SECT.    Il]        UNIVERSITY    CLUB,    CHICAGO    V.    DEAKIN  259 

witLin  a  reasonable  time  after  discovery  of  the  breach.  The  court 
refused  to  hold  as  law  propositions  submitted  by  defendant  in  error 
stating  the  converse  of  the  propositions  so  held  at  the  request  of 
plaintiff  in  error.  The  court  properly  held  that  the  lease  in  ques- 
tion was  a  bi-lateral  contract.  It  was  executed  by  both  parties  and 
contained  covenants  to  be  performed  by  each  of  them.  The  propo- 
sitions so  held  with  reference  to  the  effect  of  a  breach  of  the  twelfth 
clause  of  the  lease  also  correctly  stated  the  law.  By  holding  these 
propositions  the  court  })roperly  construed  the  twelfth  clause  as  a 
vital  provision  of  the  lease  and  held  that  a  breach  of  that  provision 
by  the  lessor  would  entitle  the  lessee  to  rescind.  Where  there  is  a 
failure  to  comply  with  a  particular  provision  of  a  contract  and  there 
is  no  agreement  that  the  breach  of  that  term  shall  operate  as  a 
discharge,  it  is  always  a  question  for  the  courts  to  determine  whether 
or  not  the  default  is  in  a  matter  which  is  vital  to  the  contract.  {City 
of  Belleville  v.  Citizens'  llorse  Raihvaij  Co.  152  111.  171;  People  v. 
Central  Union  Telephone  Co.  232  id.  260.)  While  there  was  no 
provision  in  this  contract  that  plaintiff  in  error  should  have  the 
option  to  terminate  it  if  the  terms  of  the  twelfth  clause  were  not 
observed,  it  is  apparent  that  it  was  the  intention  of  the  parties  to 
constitute  this  one  of  the  vital  provisions  of  the  lease.  It  was  con- 
cerning a  matter  in  reference  to  which  the  parties  had  a  perfect 
right  to  contract,  and  it  will  be  presumed  that  plaintiff  in  error  would 
not  have  entered  into  the  contract  if  this  clause  had  not  been  made 
a  part  of  it.  It  is  such  an  essential  provision  of  the  contract  lliat 
a  .breach  of  it  would  warrant  plaintiff  in  error  in  rescinding  the 
contract  and  surrendering  ])ossession  of  the  premises.^ 

The  court  was  not  asked  to  make  any  finding  of  fact,  and  there 
is  nothing  in  the  record  to  indicate  that  the  judgment  is  based  u])on 
any  finding  of  fact.  Whether  Sandberg  had,  in  fact,  made  a  specialty 
of  the  sale  of  pearls  was  one  of  the  controverted  questions  in  the 
case.  One  of  the  propositions  submitted  by  defendant  in  error  and 
held  by  the  court,  stated  that  the  conduct  of  a  general  jewelry 
business  was  not  "making  a  specialty  of  the  sale  of  pearls,"  within 
the  meaning  of  the  words  quoted  as  they  were  used  in  the  twelfth 
clause  of  plaintiff  in  error's  lease.  This  can  not  be  construed  as  a 
holding  that  Sandberg  did  not,  in  fact,  in  addition  to  his  conduct 
of  a  general  jewelry  business,  make  a  specialty  of  the  sale  of  ])('avls. 

The  following  proposition  was  submitted  by  defendant  in  error 
and  held  by  the  court  as  the  law  of  the  case: 

"  That  [)laintiff  performed  all  the  ol)ligations  imposed  upon  it  liy 
its  covenant  that  it  would  not  i-ent  any  other  store  in  its  building 
to  a  tenant  making  a  specialty  of  the  sale  of  pearls,  by  incorporating 
in  its  lease  to  the  second  tenant  that  said  second  tenant  should  not 
make  a  specialty  of  the  sale  of  pearls  in  the  demised  premises." 

^  Berman  v.  Shelby,  93  Ark.  472.  accord.  See  In  re  }fulUngs  Clothing  Co., 
238  F.  R.  58.    Compare  Rulun.'^  v.  flill,  213  111.  523. 


260  UNIVERSITY    CLUB,    CHICAGO    V.    DEAKIN      [CHAP.    VI 

From  a  consideratiou  of  all  the  propositions  of  law  lield  and  re- 
fused, it  appears  that  the  judgment  of  the  trial  court  was  reached 
from  the  application  of  the  proposition  just  quoted  to  the  facts  in  the 
case.  The  court  erred  in  holding  this  proposition  as  the  law.  By 
covenanting  with  plaintiff  in  error  not  to  rent  any  other  store  in 
this  building,  during  the  term  of  plaintiff  in  error's  lease,  to  any 
tenant  making  a  specialty  of  the  sale  of  pearls,  defendant  in  error 
asumed  an  obligation  which  could  not  be  discharged  by  simply 
inserting  in  the  contract  with  the  second  tenant  a  covenant  that  such 
tenant  should  not  make  a  specialty  of  the  sale  of  pearls.  It  was  in- 
cumbent upon  it  to  do  more  than  to  insert  this  provision  in  the 
second  lease.  By  the  terms  of  its  contract  w4th  plaintiff  in  error 
it  agreed  that  no  other  portion  of  its  premises  should  be  leased 
to  any  one  engaged  in  the  prohibited  line  of  business,  and  if  it 
failed  to  prevent  any  subsequent  tenant  from  engaging  in  the  busi- 
ness of  making  a  specialty  of  the  sale  of  pearls,  it  did  so  at  the  risk 
of  plaintiff  in  error  terminating  his  lease  and  surrendering  posses- 
sion of  the  premises. 

This  precise  question  has  never  been  passed  upon  by  this  court, 
so  far  as  we  are  able  to  ascertain.  Defendant  in  error  cites  and 
relies  upon  Lucente  v.  Davis,  101  Md.  526,  which  supports  its 
theory.  We  cannot  yield  our  assent  to  the  doctrine  there  announced. 
Defendant  in  error  cannot  escape  its  obligation  by  the  mere  inser- 
tion of  a  clause  in  the  lease  with  the  second  tenant  prohibiting  him 
from  engaging  in  the  line  of  business  named.  Plaintiff  in  error 
contracted  for  the  exclusive  right  to  engage  in  this  particular  busi- 
ness in  that  building.  There  was  no  privity  between  him  and  Sand- 
berg,  and  he  was  powerless  to  enforce  the  provisions  of  the  contract 
between  defendant  in  error  and  Sandberg.  It  is  idle  to  say  that  an 
action  for  damages  for  a  breach  of  contract  would  afford  him  ample 
remedy.  He  contracted  with  defendant  in  error  for  the  sole  right 
to  engage  in  this  specialty  in  its  building,  and  if  defendant  in 
error  saw  fit  to  ignore  that  provision  of  the  contract  and  suffer  a 
breach  of  the  same,  plaintiff  in  error  had  the  right  to  terminate  his 
lease,  surrender  possession  of  the  premises  and  refuse  to  further 
perform  on  his  part  the  provisions  of  the  contract. 

Tor  the  errors  indicated  the  judgment  of  the  Appellate  Court 
and  the  judgment  of  the  municipal  court  are  reversed  and  the 
cause  is  remanded  to  the  municipal  court  for  a  new  trial. 

Reversed   and   remanded. 


SECT.    Il]  LEAVITT    V.    FLETCHER  261 

LEAVITT  V.  FLETCHER 
10  All.  (Mass.)  119.    1865. 

Contract  brought  by  a  lessee  against  a  lessor  to  recover  damages 
for  a  breach  of  the  covenant  to  repair.  The  material  portions 
of  the  lease  and  the  agreed  facts  upon  which  the  case  was  submitted 
to  the  determination  of  the  whole  court  are  stated  in  the  opinion. 

Gray,  J.  By  the  indenture  upon  which  this  action  is  brought 
the  defendant  "  does  lease,  demise  and  let  "  to  the  plaintiff  a  brick 
stable  standing  on  the  lessor's  own  land,  and  a  wooden  carriage- 
house  standing  on  land  held  by  him  under  a  lease  from  others 
with  a  provision  that  if  they  shall  require  the  termination  of  that 
lease  and  the  removal  of  the  carriage-house,  the  plaintiff  may 
terminate  this  lease.  The  lessor  "  agrees  to  make  all  necessary  re- 
pairs on  the  outside  of  said  building."  The  lessee  agrees  to  pay  a 
certain  rent  monthly,  and  to  quit  and  deliver  up  the  premises  to  the 
lessor  at  the  end  of  the  term  "  in  as  good  order  and  condition,  reason- 
able use  and  wearing  thereof,  fire  and  other  unavoidable  casualties 
excepted,  as  the  same  now  are  or  may  be  put  into  by  the  said  lessor;  " 
not  to  make  or  suffer  any  waste  thereof;  and  "that  the  les.sor  may 
enter  to  view  and  make  improvements,  and  to  expel  the  lessee,  if  he 
shall  fail  to  pay  the  rent  as  aforesaid,  or  make  or  suffer  any  strip  or 
waste  thereof.  And  said  lessee  is  to  make  all  necessary  repairs  on  the 
inside  of  the  building  at  his  own  expense." 

The  brick  stable  is  the  building  mentioned  in  the  lease  next  before 
the  lessor's  covenant  to  make  outside  repairs;  but  we  have  no  doubt 
that  this  covenant  includes  all  the  premises  leased  by  the  defendant 
to  the  plaintiff,  the  carriage-house  as  well  as  the  stable.  Indeed  in 
the  duplicate  indenture  in  the  hands  of  the  defendant  the  plural  word 
"buildings"  is  substituted  for  "building"  in  this  covenant. 

The  facts  agreed  by  the  parties  are  as  follows :  Tlie  carriage- 
house  was  a  frame  covered  with  matched  boards,  had  a  shingled 
roof  and  a  plank  floor,  and  on  the  inside  was  left  uncovered  by 
lath  or  plaster.  "While  the  plaintiff  was  occupying  the  premises 
under  the  lease,  a  quantity  of  snow  accumulated  upon  the  roof  of 
the  carriage-house,  until,  at  the  close  of  a  heavy  snow  storm,  the 
carriage-house  fell  from  the  weight  of  snoAV,  crushing  and  injur- 
ing the  ])laintiff's  carriages  kept  therein.  The  plaintiff  afterwards 
demanded  of  tlie  defendant  tlint  he  sliould  restore  and  rebuild  the 
carriage-house,  but  the  defendant  refused  to  do  so.  There  is  nothing 
in  the  case  to  show  that  any  negligence  of  either  party  contributed 
to  the  accident. 

For  five  months  succeeding  the  fall  of  the  carriage-house,  the 
plaintiff  paid  to  the  defendant,  under  protest,  the  rent  reserved 
in  the  lease;  and  then,  ceasing  to  pay  rent,  was  ejected  by  the 
defendant.      The   lessee's   covenant    to    pay    rent    was    not    affected 


2G2  LEAVITT    V.    FLETCHER  [CHAP.   VI 

by  the  injury  to  the  premises,  nor  limited  by  the  exception  of  un- 
avoidable casualty  in  his  subsequent  covenant,  and  is  independent 
of  the  lessor's  covenant  to  make  outside  repairs.  Belfour  v.  Weston, 
1  T.  R.  310.  Hare  v.  Groves,  3  Anstr.  687.  Kramer  v.  CooTc,  7 
Gray,  550,  and  cases  cited.  And  it  is  not  now  denied  that  the  lessee 
was  rightly  required  to  pay  rent,  and  lawfully  ejected  for  failing 
to  pay.^ 

The  lessee  in  this  action  claims  damages,  1st.  for  the  injury 
occasioned  by  the  fall  of  the  carriage-house;  2dly,  for  the  failure  of 
the  lessor  to  rebuild   it,   after  being  expressly  requested  so   to  do. 

It  is  well  settled  that  in  a  lease  of  real  estate  no  covenant  is 
implied  that  the  lessor  shall  keep  the  premises  in  repair  or  other- 
wise fit  for  occupation.  Didton  v.  Gey^rish,  9  Cush.  89.  Foster  v, 
Peyser,  lb.  242,  and  cases  cited.  Welles  v.  Castles,  3  Gray,  326. 
The  express  covenant  of  the  defendant  in  this  case  is  only  "  to 
make  all  necessary  repairs  on  the  outside  of  the  building."  He 
does  not  covenant  that  the  outside  shall  not  give  way,  but  that,  if 
it  does,  he  will  repair  it.  He  cannot  therefore  be  held  liable  for  the 
damages  occasioned  by  the  fall  of  the  building. 

But  it  has  been  the  established  rule  of  the  common  law  for  ages 
that  an  express  covenant  to  repair  binds  the  covenantor  to  make 
good  any  injury  which  human  power  can  remedy,  even  if  caused  by 
storm,  flood,  fire,  inevitable  accident,  or  the  act  of  a  stranger.  Year- 
book 40  Ed.  III.  6.  Dyer,  33  a.  Paradine  v.  Jane,  Aleyn,  27; 
;S'.  C.  Style,  47.  Compton  v.  Allen,  Style,  162.  Bulloch  v.  Dommitt, 
6  T.  R.  650.  Green  v.  Bales,  2  Q.  B.  225 ;  S.  C.  1  Gale  &  Dav.  468. 
Phillips  V.  Stevens,  16  Mass.  238.  Bigelow  v.  Collamore,  5  Cush. 
231.  Allen  v.  Culver,  3  Denio,  294.  Dermott  v.  Jones,  2  Wallace, 
7,  8.  The  defendant's  covenant  contains  no  exceptions  of  natural 
causes  or  inevitable  accident.  "  The  outside  of  the  building "  in- 
cludes the  whole  outer  shell  of  the  building,  or  external  inclosure 

1  Decisions  that  covenants  in  leases  are  independent  are  numerous.  See 
Chipman  v.  Emeric,  3  Cal.  273;  Arnold  v.  Krigbaum,  169  Cal.  143;  Rubens 
V.  Hill,  213  III.  523;  Brown  v.  Bragg,  22  Ind.  122;  Dennison  v.  Read,  3  Dana 
(Ky.)  586;  Taylor  v.  Finnigan,  189  Mass.  568;  Meredith  Assoc,  v.  American 
Drill  Co.,  67  N.  H.  450;  Stewart  v.  Childs  Co.,  86  N.  J.  L.  648;  Lutz  v. 
Goldfine,  72  Misc.  (N.  Y.)  25;  Thomson-Houston  Co.  v.  Durant  Land  Co., 
144  N.  Y.  34;  Prescott  v.  Otterstatter,  85  Pa.  534;  Johnson  v.  Gurley,  52 
Tex.  222;  Powell  v.  Merrill,  103  Atl.  (Vt.)  259,  261;  Dawson  v.  Dyer,  5  B.  & 
Ad.  584;  Supplice  v.  Famsworth,  7  M.  &  G.  576;  Edge  v.  Boileau,  16  Q.  B.  D. 
117. 

Compare  Tedstrom  v.  Puddephat,  99  Ark.  193. 

A  landlord,  on  abandonment  of  the  premises  by  the  tenant,  is  under  no 
obligation  to  relet  them;  he  may  remain  inactive  and  sue  the  tenant  for 
rent  as  it  matures.  Merrill  v.  Willis,  51  Neb.  162;  Milling  v.  Becker,  69  Pa. 
182;  Goldman  v.  Broyles,  141  S.  W.  (Tex.  Civ.  App.)  283;  California  Bldg. 
Co.  v.  Drury,  103  Wash.  577.  And  see  Rice  v.  Dudley,  65  Ala.  68;  Respini 
V.  Porta,  89  Cal.  464.      , 

Contra.    Hinde  v.  Madansky,  161  111.  App.  216  {semhle.) 


SECT.    II  ]  MCa\RDELL    V.    WILLIAMS  263 

of  roof  and  sides.  Green  v.  Bales,  above  cited.  "  The  necessary 
repairs  on  the  outside  "  are  those  which  will  make  the  building  out- 
wardly complete.  When  those  are  made,  then,  and  not  before,  the 
lessee  will  be  bound  by  his  covenant  "  to  make  all  necessary  repairs  on 
the  inside."  The  fact  that  rebuilding  the  outside  will  so  far  replace 
the  whole  building  as  to  leave  very  little  to  be  done  on  the  inside,  and 
thus  make  the  performance  of  the  lessee's  covenant  very  easy,  does 
not  in  any  degree  excuse  the  lessor  from  first  performing  his  cove- 
nant. The  defendant  is  therefore  responsible  for  the  damages 
suffered  by  the  plaintiff  by  reason  of  the  defendant's  refusal  to  re- 
build, from  the  time  of  that  refusal  until  the  ejectment  of  the  plain- 
tiff for  not  paying  his  rent ;  and  according  to  the  agreement  of  the 
parties  the  case  must  stand  for  the  assessment  of  those  damages. 

Judgment  for  the  plaintiff  accordingly.^ 


McCAEDELL  y.  WILLIAMS 
19  R.  I.  701.    1897. 

Matteson.  C.  J.  The  plaintiff  brings  this  action  in  assumpsit, 
notwithstanding  the  fact  that  the  lease  is  a  sealed  instrument,  his 
theory  being  that  it  was  void  as  a  lease  except  as  between  the  imme- 
diate parties  to  it,  because  it  was  not  recorded.  The  case  shows, 
however,  that  the  plaintiff,  when  he  purchased  the  reversion,  took 
also  a  formal  transfer  of  the  lease  to  himself.  Having  had  notice 
of  the  lease  prior  to  his  purchase  of  the  estate,  the  statute  in  regard 
to  recording  has  no  application.  We  are  of  the  opinion  that  the 
action  should  have  been  debt  or  covenant. 

As  it  is  probable  that  another  suit  may  be  brought,  it  may 
perhaps  be  well  for  us  to  give  our  opinion  upon  other  questions 
which  have  been  made. 

The  lease  contains  a  covenant  that  the  lessor,  Wright,  should  keep 
the  exterior  of  the  leasehold  premises  in  good  repair.  Tlie  plaintiff, 
as  assignee  of  the  reversion,  took  the  interest  in  the  leasehold  prem- 
ises subject  to  the  burden  of  this  covenant.  2  Tayl.  Land.  <S:  T. 
§§  437,  439.  Where  a  landlord  has  covenanted  to  repair  and  does 
not  do  so,  the  tenant  has  several  remedies:  (a)  He  may  abandon 
the  premises  if,  by  reason  of  want  of  repair,  they  have  become 
untenantable.  Sheary  v.  Adams,  18  Hun.  {'^.  Y.)  181 ;  Lawrence 
v.  Burrell,  17.  Abb.  (K  Y.)  n.  c.  312;  Prescott  v.  Dlferslatter,  85  Pa. 
St.  534;  Blzzell  v.  Lloyd,  100  111.  214;  Lewis  v.  Chisholm,  68  Ga.  40. 
(b)  He  may  make  the  repairs  and  deduct  the  cost  from  the  rent. 
Sparhs  v.  Basseff,  49  N".  Y.  Super.  Ct.  270;  Myers  v.  Burnes,  35 

1  As  to  the  liability  in  case  of  extra ordinarv'  casualties  of  one  who  has 
covenanted  to  repair."  see  36  Am.  L.  Ret:.  (N.  S.)  212;  1  Tiffany,  Real 
Prop.,  2d  ed.,  pp.  139,  140;   1  Tiffany,  Landl.  and  Ten.,  pp.  761-766. 


264  MORRISON    V.    CHADWICK  [CHAP.   VI 

K  Y.  269;  Wright  v.  Lattin,  38  111.  293.  (c)  He  may  occupy  the 
premises  without  repair,  and  recoup  his  damages  in  an  action  for  the 
rent.  Westlake  v.  DeGraw,  25  Wend.  669;  Wright  v.  Lattin;  38  111. 
293.  (d)  He  may  sue  for  damages  for  the  breach  of  covenant  to 
repair.  Lewis  v.  Chisholm,  68  Ga.  40;  Block  v.  Ehner,  54  Ind.  544; 
Buck  V.  Rodgers,  39  Ind.  222 ;  Hexter  v.  Knox,  39  N.  Y.  Super.  Ct. 
109.  And  see  12  Am.  &  Eng.  Eijcy.  L.  726.  The  defendant  requested 
the  Common  Pleas  Division  to  rule  in  accordance  with  proposition 
(a),  but  the  court  refused  to  so  rule  and  held  that  the  only  remedy 
of  the  defendant  was  that  stated  in  proposition  (c).  We  think  the 
court  erred  in  its  ruling. 

We  think  that  payment  of  rent  to  the  plaintiff  by  the  defendant 
on  June  29,  1894,  on  the  plaintiff's  threat  of  suit,  must  be  regarded 
as  an  attornment  by  him  to  the  plaintiff,  though  the  payment  was 
expressed  to  be  merely  for  the  use  and  occupancy  of  the  premises,  and 
was  accompanied  by  a  protest  and  the  denial  of  the  plaintiff's  right 
•to  receive  the  money,  and  also  a  declaration  that  the  defendant  did 
not  recognize  the  relation  of  landlord  and  tenant  as  existing  between 
him  and  the  plaintiff. 

Case  remitted  to  the  Common  Pleas  Division  with  direction  to 
enter  judgment  for  the  defendant  for  costs.^ 


MOKKISOIvr  V.  CHADWICK 
7  C.  B.  266.     1849. 

CoLTMAN,  J.,  delivered  the  judgment  of  the  court.- 
This  was  an  action  by  a  landlord  against  his  tenant,  founded  on  a 
promise  to  use  the  demised  premises,  during  the  continuance  of  the 
tenancy,  in  a  tenant-like  manner.  The  breach  alleged,  is,  that,  during 
the  continuance  of  the  tenancy,  he  used  them  in  so  untenant-like  a 
manner  that  they  became  ruinous,  &c.  There  was  also  a  count  for 
use  and  occupation,  and  there  were  the  money  counts. 

To  the  first  count  of  the  declaration,  the  defendant  pleaded,  — 
secondly,  that  the  plaintiff,  during  the  continuance  of  the  tenancy, 
and  before  any  breach,  entered  into  a  certain  part  of  the  demised 
premises,  to  wit,  the  shed,  and  ejected,  expelled,  and  put  out  the  de- 
fendant from  the  possession  thereof,  whereupon  the  defendant,  be- 
fore any  breach,  and  whilst  he  was  so  expelled,  &c.,  wholly  quitted, 
abandoned,  and  gave  up  to  the  plaintiff  the  residue  of  the  demised 
premises,  and  the  possession  thereof,  and  the  plaintiff  has  from 
thenceforward  had  the  same,  and   the  possession   thereof. 

1  And  see  cases  on  wrongful  eviction,  post,  p.  et  seq. 

An  executory  contract  to  take  a  lease  of  premises  which  the  owner  agrees 
to  put  in  repair  need  not  be  performed,  if  the  landlord  breaks  his  contract. 
Hickman  v.  Rayl,  55  Ind.  551;  HydeviUe  Co.  v.  Eagh  Rd.  Co.,  44  Vt.  395. 

-  The  pleadings  are  stated  in  the  opinion, 


SECT.    IlJ  MORRISON    V.    CHADWICK  265 

To  this  plea  the  plaintiff  demurred,  insisting  that  it  amounted 
only  to  an  argumentative  denial  of  the  allegation  that  a  breach  Avas 
committed  during  the  tenancy. 

For  the  defendant,  it  was  said,  that  the  plea  was  a  good  plea  in 
confession  and  avoidance:  for,  it  was  insisted,  that,  when  the  plain- 
tiff entered  on  his  tenant,  and  evicted  him  from  a  part  of  the 
premises,  the  tenant  Avas  justified  in  relinquishing  the  possession  of 
the  remainder,  and  was  no  longer  bound  to  perform  the  agreement 
he  had  entered  into  on  becoming  tenant.  But  we  are  of  opinion 
that  this  proposition  cannot  be  supported. 

An  eviction  by  a  landlord  of  his  tenant  from  a  part  of  the 
premises,  creates  a  suspension  of  the  entire  rent  during  the  con- 
tinuance of  the  eviction,  until  the  tenant  re-enters  and  resumes  pos- 
session:  see  the  authorities  cited  in  1'  Wms.  Saund.  204,  n.  (2).  But 
there  is  no  authority  for  holding  that  the  tenancy  is  thereby  put 
an  end  to,  or  the  tenant  discharged  from  the  performance  of  his 
covenants,  other  than  the  covenant  for  the  payment  of  rent. 

It  may  be  urged,  that  the  landlord  nuiy  have  evicted  the  tenant 
from  the  possession  of  a  part  of  the  demised  premises,  the  posses- 
sion of  which  part  was  the  main  inducement  to  him  to  enter  into 
the  covenants  of  the  lease,  and  therefore  that  he  ought  not  any 
longer  to  be  bound  by  them.  But  it  is  to  be  borne  in  mind,  that, 
in  addition  to  the  suspension  of  the  rent,  the  lessee  may  maintain 
his  action  against  the  lessor  for  the  eviction;  by  which,  it  is  to  be 
presumed  that  he  will  obtain  satisfaction  for  any  inconvenience  or 
loss  which  he  may  suffer. 

If  the  eviction  of  a  part  by  the  landlord  will  not  discharge  the 
tenant  from  the  performance  of  the  covenants  of  his  lease,  other  than 
the  covenant  to  pay  rent,  will  the  relinquishing  the  possession  of  the 
land,  and  the  landlord's  taking  ])Ossession,  have  that  effect?  We 
think  it  will  not ;  for  the  allegations  do  not  show  a  dissolution  of  the 
tenancy  by  mutual  consent.  The  tenancy,  therefore,  continues;  and 
whilst  the  tenancy  continues,  the  obligation  to  perform  the  covenants 
continues.^     We  think,  therefore,  the  plea  is  bad. 

The  third  plea  alleges  a  surrender  of  the  tenancy  before  any 
breach,  by  operation  of  law,  —  by  the  defendant's  quitting  possession 
of  the  lands  demised,  with  tlie  consent  of  the  plaintiff,  with  the  in- 
tention of  putting  an  end  to  the  tenancy,  and  by  the  plaintiff's  accept- 
ing such  possession,  Avith  the  intention  of  putting  an  end  to  the 
tenancy. 

It  Avas  contended,  on  the  part  of  tlie  plaintiff,  that  this  plea  was 

1  It  would  appear,  therefore,  that,  where  the  lessor  has  evicted  the  lessee 
or  assignee,  or  has  taken  possession  with  his  assent,  the  lessee  or  assignee 
would,  under  a  covenant  to  repair,  he  hound  to  re-enter  upon  the  lessor  for 
the  pur])ose  of  doing  the  repairs.  It  would,  of  course,  be  a  good  answer  to  an 
action  of  covenant  for  not  repairing,  to  say  that  the  defendant  was  prevented 
by  the  plaintiff  from  entering.  —  Rep. 


266  RENTS  [chap.  VI 

bad,  on  the  ground  that  the  agreement  stated  in  the  plea,  M'ould  not 
constitute  a  surrender  by  act  and  operation  of  law;  and  that  the 
plea,  unless  it  showed  a  surrender,  furnished  no  answer  to  the 
declaration.  And  we  agree  that  this  is  so ;  for  the  breach  is  admitted ; 
and,  if  the  tenancy  continued,  no  answer  is  given  to  it. 

If,  however,  it  ought  to  be  held  —  agreeably  to  what  is  said  in 
Grimman  v.  Legge,  8  B.  &  C.  324;  2  M.  &  R.  438  — that  the  plea 
shows  a  svirrender  by  act  and  operation  of  law,  we  think  the  plea 
is  bad,  on  special  demurrer,  as  amounting  only  to  an  argumenta- 
tive denial  that  any  breach  had  been  committed  during  the  con- 
tinuance of  the  tenancy.^ 

Judgment  for  the  plaintijf. 


ANDREWS  V.  NEEDHAM 
Noy  75.     1598. 

A.  leases  for  years,  by  Indenture.  N.  covenants  to  repair,  etc.,  and 
to  yeild  up  all  [the  tenements  well  repaired  -'  ]  at  the  end  of  the 
term.  But  during  that,  one  Blunt  enters  by  an  elder  title.  If  the 
Lessee  be  discharged  of  the  Covenant  to  yield  up  all,  etc.  And  it 
seem'd  to  the  Court  that  he  was.  For  if  the  Land  be  gone,  the 
Obligation  is  discharged     Ve.  20  H.  6.  45  E.  3.  8. 

Note.  —  On  implied  covenants  for  quiet  enjoyment,  see  Fifth  Ave.  Bldg. 
Co.  V.  Kcrnochan,  221  N.  Y.  370,  post,  p.  ;  Obcrrneier  v.  Mattison,  98 
Oreg.  195;   1  Tiffany,  Real  Prop..  2d  ed.,  §  49. 

On  implied  covenants  for  payment  of  rent,  see  1  Tiffanj',  Landl.  and  Ten., 
pp.  1030-1035. 


^v  SECTION  III 

P  RENTS 

A.     In  General 

At  common  law  rents  are  distinguished  as  of  three  kinds :  rent 
service ;  rent  charge ;  and  rent  seek.  —  Rent  service  is  the  rent  ren- 
dered for  the  tenure  of  land.  The  services  of  tenure  consisted  at 
common  law  in  rendering  to  the  lord  profits  of  the  land  in  money 
or  in  kind,  or  in  performing  for  him  work  and  labour  or  other  duties 
which  were  equivalent  to  profits;  but  in  process  of  time  nearly  all 
services  became  commuted,  by  agreement  or  usage,  into  fixed  money 
payments,  or  rents  in  the  ordinary  meaning  of   the  term. — Rent 

1  The  rest  of  the  opinion,  relating  to  another  point,  is  omitted. 
Newton  v.  Allin,  1  Q.  B.  518,  accord.     And  see  Smith  v.  McEnany,  170 

Mass.  26,  28;  Carrel  v.  Road,  Cro.  Eliz.  374. 

2  See  Cro.  Eliz.  656. 


SECT.    Ill]  RENTS  267 

service  was  attended  at  common  law  with  the  remedy  of  distress;  by 
which  if  the  rent  were  in  arrear  and  unpaid,  or  the  services  unper- 
formed, the  lord  might  enter  upon  the  land  during  the  tenancy,  and 
seize  any  personal  chattels  there  found,  and  detain  them  as  a  pledge 
for  the  payment  of  the  arrears  of  rent  or  for  the  performance  of  the 
services. 

Rent  may  be  payable  out  of  land  independently  of  tenure.  The 
owner  of  land,  whether  in  fee  or  for  life  or  for  a  term  of  years,  may 
grant  or  assign  the  whole  of  his  estate  and  interest  in  the  land, 
leaving  in  himself  no  reversion,  but  reserving  a  rent ;  or  he  may  grant 
to  another  a  rent  out  of  the  land,  reserving  to  himself  the  estate  and 
possession.  In  such  cases  the  rent  has  no  connection  with  tenure 
and  is  not  rent  service,  nor  has  it  at  common  law  the  incidental 
remedy  of  distress.  But  a  power  of  distress  may  be  given  or  reserved 
by  an  express  clause  in  the  deed  of  grant  or  conveyance,  with  the 
effect  of  charging  the  land  with  the  rent,  which  is  then  called  a 
rent-charge. 

A  rent  service  may  become  disconnected  with  tenure  by  act  of 
the  reversioner,  as  if  he  conveys  away  the  reversion  to  which  the 
tenure  is  incident,  but  exjiressly  reserves  to  himself  the  rent;  or  if 
he  conveys  away  the  rent  separately,  reserving  the  reversion  and 
tenure.  The  rent  is  prima  facie  an  incident  of  the  reversion,  and 
passes  to  a  grantee  of  the  reversion  unless  expressly  reserved;  but 
not  the  reversion  with  the  rent.  By  severing  the  rent  from  the 
tenure,  the  remedy  of  distress,  which  was  an  incident  of  the  tenure, 
is  no  longer  available  at  common  law.  Rents  deprived  of  the 
remedy  of  distress,  whether  originally  so  created,  or  becoming  so 
by  a  subsequent  act,  were  called  rents  seek. 

But  by  the  Statute  4  Geo.  II.  c.  28,  s.  5,  it  was  enacted  that  "  all 
and  every  person  or  persons,  bodies  politic  and  corporate,  shall  and 
may  have  the  like  remedy  by  distress,  and  by  impounding  and  sell- 
ing the  same  in  cases  of  rents  seek,  rents  of  assize  and  chief  rents, 
wliich  have  been  duly  answered  or  paid  for  the  space  of  three  years, 
within  the  space  of  twenty  years  before  the  first  day  of  this  present 
session  of  Parliament,  or  shall  be  hereafter  created,  as  in  case  of 
rent  reserved  upon  lease."  Rents  seek  issuing  out  of  or  charged  upon 
freehold  interests  in  land  without  express  power  of  distress  are  dis- 
trainable  under  this  statute;  but  rent  seek  issuing  out  of  a  term  of 
years  or  chattel  interest  seems  to  have  been  considered  not  to  be 
within  the  statute.^  —  Now  by  the  Conveyancing  Act,  1881,  44  & 

1  "  I  am  of  opinion  that  the  instrument  in  quesstion  amounts  to  an  abso- 
hite  assifjnnient  of  the 'defendant's  interest  in  the  two  farms;  and  that,  there- 
fore, this  distress  cannot  bo  supported.    In  the  case  in  Wilson  [ v. 

Cooper,  2  Wills.  3751,  the  defendant  avowed  under  a  distress  for  rent  due 
from  the  jiiaintiff  to  him  upon  an  asftignmmt  of  a  lease  of  a  term  for  years 
to  the  plaintiff;  and  the  question  was,  Whether  that  was  a  rent  for  which 
a  distress  would  lie?  Though  there  was  a  rent  reserved  upon  that  instru- 
ment, the  court  held  that  the  assignor,  having  granted  all  his  estate  in  the 


268  RENTS  [chap.   VI 

45  Vict.  c.  41,  s.  44,  the  remedy  of  distress  is  given,  subject  to  the 
conditions  of  the  Act,  "  where  a  person  is  entitled  to  receive  out  of 
any  land,  or  out  of  the  income  of  any  land,  any  annual  sum  payable 
half  yearly  or  otherwise,  whether  charged  on  the  land  or  on  the  in- 
come of  the  land,  and  whether  by  way  of  rent-charge  or  otherwise, 
not  being  rent  incident  to  a  reversion."  The  remedy  of  distress, 
therefore,  is  now  attendant  upon  every  species  of  rent,  either  by 
common  law,  or  under  an  express  clause  of  distress,  or  by  statute.^ 

Rent  service  is  said  to  be  reserved,  as  distinguished  from  a  specific 
part  of  the  land  which  may  be  excepted.  In  technical  language  an 
exception  refers  to  a  part  of  the  tenement  granted  and  of  a  thing 
in  esse,  and  it  leaves  the  part  excepted  in  the  grantor  as  before;  a 
reservation  of  rent  creates  a  new  right  which  did  not  exist  before, 
issuing  out  of  the  tenement  tO'  the  use  of  the  grantor.  —  Rent  service 
may  be  reserved  by  any  conveyance  that  is  effective  to  pass  an 
estate,  leaving  a  reversion  in  the  grantor  to  which  tenure  may  be 
incident.  It  may  be  reserved  upon  a  deed  of  grant  operating  at  com- 
mon law,  or  under  the  Statute  of  Uses,  or  by  way  of  appointment 
under  a  power,  or  upon  a  grant  of  a  reversion  or  remainder,  or  upon 
a  lease  for  life  or  for  years,  or  upon  a  parol  lease  where  such  a 
lease  is  effective.  It  may  be  reserved  by  deed  poll,  for  when  the 
grantee  accepts  the  deed,  he  agrees  to  the  rent,  and  the  rent  is 
reserved  by  the  words  of  the  grantor  and  not  by  the  grantee.  — 
It  may  be  reserved  upon  a  devise  by  will  of  a  particular  estate;  a 
rent  service  is  thereby  created  which  is  incident  to  the  reversion, 
and  passes  with  it  to  the  heir  or  devisee  of  the  testator.  But  in  the 
case  of  two  independent  devises  of  the  land  and  of  the  rent,  it  is 
not  rent  service  but  a  rent  seek;  unless  charged  upon  the  land  by 
a  special  clause  of  distress,  which  would  make  it  a  rent  charge. 

Rent  service,  properly  so  called,  can  be  reserved  only  to  the  grantor 
or  lessor  of  the  particular  estate  out  of  which  it  issues,  who  retains 
the  reversion  to  which  the  rent  is  incident;  it  cannot  be  reserved 
to  a  stranger  to  the  estate.  Payment  of  rent  to  a  stranger  may  be 
imposed  as  the  condition  of  an  estate,  with  a  right  of  re-entry  for 
breach  of  the  condition;  but  it  is  not  properly  a  rent,  nor  can  the 
stranger  take  advantage  of  the  condition  by  entry. 

At  common  law,  before  the  Statute  of  Quia  Emptor es,  18  Edw. 
I.  c.  1,  "  if  a  man  had  made  a  feoffment  in  fee  simple,  by  deed  or 


term,  could  not  distrain;  and  in  giving  their  judgment,  referred  to  Brooke's 
Abridgment,  tit.  Dette,  pi.  39,  where  the  Year  Book,  43  Edw.  3,  4,  is  cited 
for  the  following  proposition :  '  If  a  man  hath  a  term  for  years,  and  grants 
all  his  estate  of  the  term,  rendering  certain  rent,  he  cannot  distrain  if  the 
rent  be  in  arrear.'  I  am  of  opinion  that  the  plaintiff  is  entitled  to 
judgment."  —  Per  Dallas,  C.  J.,  in  Parmenter  v.  Webber,  8  Taunt.  593.  595 
(1818).  And  see  Preece  v.  Carrie,  5  Bing.  24;  The  King  v.  Wilson,  5  M.  & 
Ryl.  140,  157-162;  2  Tiffany,  Land!,  and  Ten.  pp.  1988,  1989  and  note  28. 
1  But  see  Lewis  v.  Read,  [1905]  1  Ch.  46,  post,  p. 


SECT.    Ill]  RENTS  269 

without  deed,  yielding  to  him  and  to  his  heirs  a  certain  rent,  this 
was  a  rent, service,  and  for  this  he  might  have  distrained  of  common 
right ;  and  if  there  were  no  reservation  of  any  rent,  nor  of  any 
service,  yet  the  feoffee  held  of  the  feoffor  by  the  same  service  as  the 
feoffor  held  of  his  lord  next  paramount."  ^  After  the  statute,  a  feoff- 
ment in  fee'created  no  new  tenure  to  the  feoffor,  but  the  feoffee  held 
the  land  immediately  of  the  lord  next  paramount  by  force  of  the 
statute;  and  if  a  new  rent  was  expressed  to  be  reserved,  it  was  not 
rent  service,  nor  was  there  any  right  of  distress  without  an  express 
clause  to  that  effect,  making  it  a  rent  cJiargc.  —  The  statute  applied 
only  to  the  alienation  of  the  Avholc  fee;  and  if  a  grant  was  made  for 
a  particular  estate,  in  tail  or  for  life,  rendering  a  certain  rent,  the 
reversion  remaining  in  the  grantor;  or  if  several  particular  estates 
were  granted  in  succession,  leaving  a  reversion  in  the  grantor,  the 
rent  wa^  rent  service  and  attended  with  the  right  of  distress.  If  the 
grant  was  made  for  a  particular  estate  Avith  remainder  over  in  fee, 
leaving  no  reversion  in  the  grantor,  the  grantees  held  of  the  superior 
lord  by  force  of  the  statute;  the  rent  reserved  was  not  rent  service 
and  there  was  no  right  of  distress,  without  an  express  clause. 

If  a  lease  be  made  for  a  term  of  years,  reserving  rent,  it  is  a 
rent  service,  and  the  lessor  may  distrain  at  common  law.  By  the 
Statute  of  Frauds,  29  Car.  II.  c.  3,  s.  1,  it  is  required  that  all 
leases  should  be  made  in  writing  and  signed ;  and  by  8  &  9  Vict. 
c.  106,  s.  3,  it  is  required  that  leases  required  to  be  in  writing, 
shall  be  made  by  deed.  But  the  Statute  of  Frauds,  s.  2,  excepts 
"  all  leases  not  exceeding  the  term  of  three  years  from  the  making 
thereof,  whereupon  the  rent  reserved  to  the  landlord  during  such 
t(>rm  shall  amount  unto  two-thirds  part  at  the  least  of  the  full 
improved  value  of  the  thing  demised."  Therefore  in  leases  by 
parol  within  the  exception  rent  service  may  be  reserved,  as  in  a 
lease  at  common  law.  —  If  a  lessee  for  a  term  of  years  makes  an 
underlease  for  a  less  term  leaving  a  reversion,  however  small,  and 
reserving  a  rent,  it  is  a  rent  service  at  common  law  with  a  right 
of  distress.  And  a  tenant  from  year  to  year,  underletting  for  a 
term  of  years,  has  a  reversion  with  a  righ't  of  distress.  But  upon 
an  assignment  of  a  term  of  years,  leaving  no  reversion  in  the 
assignor,  but  reserving  a  rent,  there  is  no  tenure  and  consequently 
no  rent  service  strictly  so  called,  nor  any  right  of  distress  at  com- 
mon law;  and  an  underlease  for  the  Avhole  term  is  equivalent  to  an 
assignment  in  this,  respect. 

Rent  may  be  reserved  on  a  tenancy  at  will  and  the  lessor  may 
distrain  for  arrears;  but  it  is  not  rent  service  strictly  so  called, 
because  there  is  no  tenure.  —  Leake,  Uses  and  Profits  of  Land,  pp. 
373-377.2 

1  Lit,  §  216. 

2  See  Lit..  §§  213-228:  233-240.  346.  565;   Harrison.  Chief  Rents,  pp.  2-6. 
As  to  whirli  of  the  United  State.s  ha\e  preserved  the  law  of  distress,  see 

2  Taylor,  Landl.  and  Ten.,  9th  ed.,  §§  558,  559. 


270  PRESCOTT    V.    BOUCHER  [CHAP.    VI 

PRESCOTT  V.  BOUCHER  ^ 

3  B.  &  Ad.  849.     1832. 

Replevin.  Avowry  by  the  defendant  as  executor  of  the  last 
will  and  testament  of  William  Boucher,  deceased,  stated  that  the 
plaintiif  from  the  25th  of  March,  1829,  until  and  after  the  25th  of 
March,  1830,  and  from  thenc'e  until  and  at  the  time  of  the  death  of 
the  said  W.  Boucher,  held  and  enjoyed  the  premises  mentioned  in 
the  declaration,  &c.,  as  tenant  to  W.  Boucher  by  virtue  of  a  demise 
thereof  to  him  the  defendant  theretofore  made  at  the  yearly  rent  of 
£70,  and  because  £70  of  the  rent  for  the  space  of  one  year  ending 
on  the  26th  of  March,  1830,  was  due,  and  unpaid  until  and  at  the 
time  of  the  death  of  W.  Boucher,  and  from  thence  until  and  at  the 
said  time  when,  &c.,  continued  in  arrear  from  the  plaintiff  to  the 
defendant,  as  such  executor,  he  the  defendant  as  such  executor 
avowed,  &c.  Plea  in  bar  by  the  plaintiif,  that  the  said  W.  Boucher 
at  the  time  of  the  making  of  the  said  demise  in  the  avowry  men- 
tioned, and  from  thence  until  and  at  the  time  of  his  death,  was 
seised  in  his  demesne  as  of  fee  of  and  in  the  said  premises,  in  which, 
&c.,  and  that  the  said  demise  under  which  the  plaintiff  held  and 
enjoyed  the  same,  &c.,  at  the  yearly  rent  in  the  avowry  mentioned, 
was  a  certain  demise  thereof,  heretofore,  to  wit  on  the  25th  of 
March,  1825,  made  by  the  said  W.  Boucher,  in  his  lifetime  to  the 
plaintiff  for  a  term  of  years  still  unexpired,  to  wit,  the  term  of 
seven  years.  General  demurrer  and  joinder.  This  case  was  argued 
in  last  Easter  Term.^ 

Cur.   adv.   vuU. 

Lord  Tenterden,  C.  J.,  in  the  course  of  this  [Trinity]  term  de- 
livered the  judgment  of  the  court. 

The  question  raised  upon  this  record  is  this,  Whether  the  executor 
of  a  person  who  was  seised  in  fee  of  land  and  demised  it  for  a  term 
of  years,  reserving  a  rent,  can  distrain  for  the  arrears  of  such  rent, 
accrued  in  the  lifetime  of  the  testator  At  common  law  it  is  clear 
that  he  could  not  so  distrain,  and  his  power  to  do  so,  if  he  has  any, 
must  be  derived  from  the  provisions  of  the  Statute  32  H.  8,  r. 
37,  §1. 

The  preamble  of  that  Statute  is  material  because  the  enacting  part 
of  the  first  section  has  no  words  distinctly  describing  the  persons 
whose  executors  are  empowered  to  distrain;  but  refers  to  the  pre- 
amble by  the  word  "  such." 

The  preamble  and  first  section  of  the  Act  are  as  follows :  "  Foras- 
much as  by  the  order  of  the  common  law,  the  executors,  or  adminis- 
trators of  tenants  in  fee  simple,  tenants  in  fee  tail,  and  tenants  for 
term  of  lives,  or  rents  services,  rent  charges,  rents  seeks,  and  fee 
farms,  have  no  remedy  to  recover  such  arrearages  of  the  said  rents 

1  Before  Lord  Tenterden,  C.  J.,  Littledale,   Parke,  and  Patteson,  JJ. 


SECT.    Ill]  PRESCOTT    V.    BOUCHER  271 

or  fee  farms,  as  were  due  unto  the  testators  in  their  lives,  nor  yet 
the  heirs  of  such  testator,  nor  any  person  having  the  reversion  of 
his  estate  after  his  decease,  may  distrain,  or  have  any  lawful  action 
to  levy  any  such  arrearages  of  rents  or  fee  farms,  due  unto  him  in 
his  life  as  is  aforesaid;  by  reason  whereof,  the  tenants  of  the  de- 
mesne of  such  lands,  tenements  or  hereditaments,  out  of  the  Avhich 
such  rents  were  due  and  payable,  who  of  right  ought  to  pay  their 
rents  and  farms  at  such  days  and  terms  as  they  were  due,  do 
many  times  keep,  hold,  and  retain  such  arrearages  in  their  own 
hands,  so  that  the  executors  and  administrators  of  the  persons  to 
whom  such  rents  or  fee  farms  are  due,  cannot  have  or  come  hy 
the  said  arrearages  of  the  same,  towards  the  payment  of  the  debts 
and  performance  of  the  will  of  the  said  testators :  for  remedy  whereof 
be  it  enacted,  &c.,  that  the  executors  and  administrators  of  every 
■'<iich  person  or  persons,  unto  whom  any  such  rent  or  fee  farm  is  or 
shall  be  due,  and  not  paid  at  the  time  of  his  death,  shall  and  may 
have  an  action  of  debt  for  all  such  arrearages,  against  the  tenant 
or  tenants  that  ought  to  have  paid  the  said  rent  or  fee  farms  so 
])eing  behind  in  the  life  of  their  testator,  or  against  the  executors 
and  administrators  of  the  said  tenants;  and  also  furthermore,  it  shall 
be  lawful  to  every  such  executor  and  administrator  of  any  such 
])erson  or  persons  unto  whom  such  rent  or  fee  farm  is  or  shall  be 
due,  and  not  paid  at  the  time  of  his  death  as  is  aforesaid,  to  distrain 
for  the  arrearages  of  all  such  rents  and  fee  farms,  upon  the  lands, 
tenements,  and  other  hereditaments,  which  were  charged  with  the 
]xayment  of  such  rents  or  fee  farms,  and  chargeable  to  the  distress 
of  the  said  testator,  so  long  as  the  said  lands,  tenements,  or  here- 
ditaments continue,  remain  and  be  in  the  seisin,  or  possession  of  the 
said  tenant  in  demesne  who  ought  immediately  to  have  paid  the  said 
rent  or  fee  farm  so  being  behind,  to  the  said  testator  in  his  life, 
or  in  the  seisin  or  possession  of  any  other  person  or  persons  claiming 
the  said  lands,  tenements,  and  hereditaments,  only  by  and  from  the 
same  tenant  by  purchase,  gift,  or  descent,  in  like  manner  and  form, 
as  their  said  testator  might  or  ought  to  have  done  in  his  lifetime, 
and  the  said  executors  and  administrators  shall,  for  the  same  dis- 
tress, lawfully  make  avowry  upon  their  matter  aforesaid." 

Looking  at  these  words  independently  of  decided  cases,  it  should 
seem  that  the  Legislature  meant  to  provide  remedy  for  those  only 
who  were  previously  Avithout  any  remedy,  by  action  or  otherwise; 
and  the  Statute  provides  a  double  remedy,  namely,  by  action  of  debt 
and  by  distress.  What  persons  had  a  remedy  by  action  of  debt,  and 
the  reasons  why  they  had  it,  will  be  found  laid  down  in  Bacon's 
Abridgment,  tit.  Rent  (K)  6,  referring  to  Gilbert  on  Kents,  93,  Co. 
Lit.  162,  and  Ofjnel's  Ca^^e,  4  Co.  49.  The  passage  is  as  follows: 
"  The  remedy  by  action  of  debt  extended  only  to  rents  reserved  on 
leases  for  years,  but  did  not  affect  freehold  rents ;  the  reason  whereof 
is  this:    Actions  of  debt  were  given  for  rent  reserved  upon  leases 


272  PRESCOTT    V.    BOUCHER  [CHAP.   VI 

for  years,  for  that  such  terms  being  of  short  continuance,  it  was 
necessary  that  the  lessor  sliouhl  follow  the  chattels  of  his  tenant, 
wherever  they  were,  or  wheresoever  he  should  remove  them :  but 
when  the  rents  were  reserved  on  the  durable  estate  of  the  feud,  the 
feud  itself,  and  the  chattels  thereupon  were  pledged  for  the  rent; 
and  if  the  land  were  unstocked  for  two  years,  the  lord  had  his  cessa- 
vit per  biennimn  to  recover  the  land  itself;  and  hence  it  is  that 
if  the  durable  estate  of  the  feiid  determined,  as  if  the  lessee  for  life 
died,  the  lessor  might  have  an  action  of  debt  for  the  arrears :  because 
the  land  was  no  longer  a  security  for  the  rent,  and  therefore  the 
chattels  of  the  tenant  were  liable  to  satisfy  the  arrears  in  an  action 
of  debt  wherever  the  tenant  removed  them.  So  it  was  in  the  case 
of  a  rent  charge;  for  if  a  man  were  seised  of  it  in  fee,  and  it  was 
arrear,  he  could  have  no  action  of  debt  for  the  arrears;  and  if  he 
died,  his  heir  could  not  have  any  real  action  for  the  arrears,  for 
that  is  proper  for  the  recovery  of  the  possession,  which  was  still  in 
him,  nor  could  he  have  a  personal  action,  because,  besides  the  former 
reason,  it  were  absurd  to  give  a  real  action  for  the  rent  running  on 
in  his  own  time,  and  a  personal  action  for  the  arrears  in  the  life- 
time of  the  ancestor  at  the  same  time;  for  it  could  not  be  supposed 
to  be  both  a  real  and  personal  thing;  for  this  reason  also,  the  exe- 
cutor could  have  no  action  for  the  arrears,  (who  is  entitled  to  the 
personal  estate),  and  also  because  he  could  not  entitle  himself  by 
virtue  of  the  contract  that  created  the  rent,  since  the  heir  was  con- 
stituted representative  by  the  contract,  and  by  consequence  that 
represenation  excluded  all  other  persons  from  taking  any  benefit 
as  representatives  that  did  not  come  under  that  character." 

The  view  of  the  Statute  which  has  been  above  suggested,  was  acted 
upon  in  the  case  of  Turner  v.  Lee,  Cro.  Car.  471,  in  which  it  was 
held,  that  where  a  rent  charge  had  been  granted  for  years,  if  the 
grantee  should  so  long  live,  the  executor  of  the  grantee  could  not 
distrain  under  the  Statute,  because  he  had  a  remedy  by  action  of 
debt  at  the  common  law.  If  this  construction  had  always  been 
adhered  to,  the  present  case  would  be  clear;  but  a  different  view  of 
the  Statute  seems  to  have  been  taken  in  a  previous  case  of  Lambert 
V.  Austin,  Cro.  Eliz.  332,  in  which  it  was  assumed  that  the  executor 
of  the  grantee  for  his  own  life  of  a  rent  charge  could  distrain  under 
this  Statute,  although  it  is  plain  that  such  executor  had  a  remedy 
by  action  of  debt  at  common  law-,  the  estate  for  life  in  the  rent  hav- 
ing been  determined.  And  in  Hool  v.  Bell.  1  Ld.  Raym.  172,  the 
point  was  expressly  so  held.  It  was  there  argued  that  the  expression 
"  tenants  for  life  "  in  the  Statute  must  be  taken  to  mean  tenants 
pour  autre  vie,  whose  executors  were  certainly  without  remedy  dur- 
ing the  life  of  cestui  que  vie;  but  the  court  said:  "The  Statute  is 
a  remedial  law,  and  shall  extend  to  the  executors  of  all  tenants  for 
life,  and  the  law  has  been  taken  so  always  since  the  Statute,  and 
has  never  been  questioned,  and  the  words  of  the  Statute  are  general 


SECT.   Ill]  PRESCOTT    V.    BOUCHER  273 

enough  to  extend  to  all.  And  in  Lambert  v.  Austin  this  seems  to  he 
admitted,  and  therefore  the  rule  in  Turner  v.  Lee,  so  generally  taken, 
cannot  be  law."  The  case  of  Hool  v.  Bell  appears  to  have  been 
always  treated  as  good  law,  and  it  must  be  considered  that  the  Stat- 
ute 32  H.  8,  c.  37,  is  not  confined  to  persons  who  had  no  remedy  at 
all  previously. 

The  question  then  is  whether  the  present  case  be  within  the  words 
or  meaning  of  the  Statute.  The  words  are  "  executors  or  adminis- 
trators of  tenants  in  fee  simple,  tenants  in  fee  tail,  and  tenants  for 
term  of  lives,  or  rents  services,  rent  charges,  rents  seeks  and  fee 
farms."  Nothing  is  said  as  to  tenants  for  term  of  years.  If  there- 
fore the  testator  in  the  present  case  was  tenant  for  term  of  years, 
his  executor  is  not  within  the  words  of  the  Statute.  If  the  testator 
was  tenant  of  the  rent  at  all,  it  seems  difficult  to  say  that  he  was 
tenant  for  a  longer  time  or  for  a  greater  estate,  than  the  rent  could 
have  continuance;  it  seems  absurd  to  say  that  a  man  is  seised  in  fee 
of  a  rent,  the  duration  of  which  is  limited  to  a  few  years,  or  to  a 
particular  life.  In  the  case  of  a  rent  charge  granted  for  years,  it 
is  impossible  to  say  that  the  grantee  is  within  the  words  "  tenant 
in  fee  simple,  fee  tail,  or  for  term  of  lives,"  and  why  should  a 
lessor  who  reserves  a  rent  to  himself  and  his  heirs,  by  a  lease  for 
years,  be  thought  to  be  within  the  same  words?  The  reasons  which 
are  pressed  in  argument  are  that  the  rent  is  incident  to  the  reversion, 
that  the  lessor  is  seised  in  fee  of  the  reversion,  and  must  therefore 
be  seised  in  fee  of  the  rent  which  is  incident  to  it;  and  that  he  can- 
not be  tenant  for  years  of  the  rent,  for  if  he  were,  it  would  go  to 
his  executors  on  his  death,  whereas,  by  law,  it  is  incident  to  the 
reversion  and  passes  with  it.  This  argument  may  be  very  forcible 
to  show  that  the  lessor  who  has  demised  for  years,  is  not  tenant  for 
years  of  the  rent;  but  it  does  not  follow  that  he  is  tenant  in  fee 
simple,  fee  tail,  or  for  term  of  lives,  of  the  same  rent.  It  is  true 
that  in  the  present  case  the  testator  was  seised  in  fee  of  the  land 
before  he  made  a  lease  for  years;  after  making  that  lease,  he  con- 
tinued seised  in  fee  of  the  land,  seised  of  the  immediate  freehold, 
but,  in  respect  to  the  right  of  possession,  having  a  reversionary 
estate  expectant  on  the  determination  of  the  lease  for  years:  he  still 
continues  tenant  of  the  freehold  in  every  legal  sense,  and  is  not 
tenant  of  the  rent  at  all  in  the  legal  sense  of  the  word  "  tenant," 
as  used  in  the  Statute  in  question. 

Where  indeed  the  rent  is  reserved  on  a  lease  for  life,  or  a  gift  in 
tail,  the  lessor  or  donor  parts  with  the  immediate  freehold  in  the 
land;  he  has  only  a  reversionary  estate  expectant  on  the  determina- 
tion of  the  immediate  estate  of  freehold  which  is  in  another;  and 
during  that  estate  of  freehold,  he  is  strictly  tenant  of  the  rent  in  a 
legal  sense,  though  it  be  a  rent  service  and  be  incident  to  the  re- 
version :  his  remedy  for  the  rent  is  by  writ  of  assize,  and  not  by  a 
personal  action  of  debt.     If  the  lease  be  for  life,  he  is  tenant  for 


274  PRESCOTT   V.    BOUCHER  [CHAP,    VI 

life  of  the  rent;  if  it  be  a  gift  in  tail^  be  is  seised  of  tbe  rent  during 
the  continuance  of  tbe  estate  tail.  It  is  true  tbat  since  tbe  Statute 
Quia  Emptores,  no  one  can  reserve  a  rent  service  on  a  conveyance 
in  fee;  but  tbe  Statute  32  H.  8,  c.  37,  may  allude  by  tbe  words 
"  tenants  in  fee  simple  of  a  rent  service,"  to  rent  services  created 
before  tbe  Statute  Quia  Emptores,  of  wbich  tbere  are  still  many 
wbicb  are  called  quit  rents.  Or  tbe  words  of  tbe  Statute  may  be 
taken  reddendo  singula  singulis,  and  applying  tbe  words  "  tenants 
in  fee  simple,  tenants  in  fee  tail,"  to  rent  charges  and  fee  farms. 

For  tbese  reasons  we  are  of  opinion  tbat  a  person  seised  in  fee  of 
land  and  demising  it  for  years,  reserving  a  rent,  tbougb  be  be  not 
tenant  for  years  of  tbe  rent,  is  still  not  witbin  tbe  words  of  tbis 
Statute  "  tenant  in  fee  simple,  fee  tail,  or  for  term  of  lives,"  of  tbe 
rent,  and  is  indeed  not  tenant  at  all  of  tbe  rent. 

It  remains  to  be  considered  wbetber  be  is  witbin  tbe  meaning  of 
tbe  Statute. 

It  is  matter  of  history  that  at  the  time  when  tbis  Statute  passed, 
leases  for  years  were  but  little  regarded.  It  is  clear  also  that  an 
action  of  debt  for  rent  on  such  leases  was  maintainable.  Such  leases 
therefore  do  not  appear  to  have  been  within  the  mischief  intended 
to  be  remedied  by  tbe  Statute,  nor  probably  within  tbe  contempla- 
tion of  the  framers  of  tbe  Act,  and  Lord  Coke  in  bis  observations 
on  this  Statute,  Co.  Lit.  162  b,  makes  no  allusion  to  leases  for  years, 
and  evidently  considers  tbe  Statute  as  applicable  only  to  freehold 
rents. 

Some  authorities  upon  tbis  subject  remain  to  be  noticed.  The 
first  is  the  case  of  Turner  v.  Lee,  already  cited,  which  arose  on  a 
lease  for  years  determinable  on  a  life,  and  the  Statute  was  held  not 
to  apply.  Tbe  point  does  not  apear  to  have  been  raised  in  any  re- 
ported case  from  that  time  till  the  case  of  Renvin  v.  Watl-in,  Mich, 
T.  5  Geo.  2,  B.  R.,  which  is  to  be  found  in  the  first  vol.  of  Selwyn's 
Nisi  Prius,  p.  678  of  the  8th  edition.  It  is  as  follows :  "A.  seised 
in  fee  let  to  tbe  plaintiff  for  twenty-one  years,  and  afterwards  died 
seised  of  tbe  reversion:  tbe  defendant  administered,  and  distrained 
for  half  a  year's  rent  due  to  the  intestate,  for  which  he  avowed.  On 
demurrer  to  tbe  avowry  it  was  objected  that  tbere  was  not  any 
privity  of  estate  between  the  administrator  and  the  lessor,  and 
therefore  tbe  avowry,  which  is  in  the  realty,  could  not  be  main- 
tained by  him.  And  it  was  observed  that  tbis  was  a  case  out  of 
the  Statute  32  H.  8,  c.  37,  for  tbat  only  gives  a  remedy  by  way  of 
distress  for  rents  of  freehold,  and  of  this  opinion  the  court  seemed. 
1  Inst.  162  a,  4  Eep.  50,  Cro.  Cor.  471,  Latch.  211  {Wade  v.  Marsh), 
were  cited."     There  is  a  note  as  follows :  — 

"  But  in  Powell  v.  Killicl:,  Middlesex  Sittings,  M.  25  G.  2,  where 
in  trespass  for  entering  plaintiff's  house  and  carrying  away  his 
goods,  upon  not  guilty,  defendant  gave  in  evidence  tbat  he  was 
executor  of  A.  who  was  plaintiff's  landlord  of  tbe  house  and  tbat 


SECT.    Ill]  PRESCOTT   V.    BOUCHER  275 

be  distrained  for  rent  due  to  his  testator  at  the  time  of  his  death' 
it  was  objected  for  plaintiff  that  executor  was  empowered  to  distrain 
only  by  virtue  of  the  Statute  32  H.  8,  c.  37,  and  that  the  Statute 
extended  to  the  executors  and  administrators  of  those  persons  only 
to  whom  rent  services,  rent  charges,  rents  seek,  or  fee  farms  were 
due,  and  that  the  present  case  did  not  fall  within  either  of  those 
descriptions.  But  Lee,  C.  J.,  overruled  the  objection,  and  said  this 
was  a  rent  service,  the  testator  being  in  his  lifetime  seised  in  fee, 
and  the  plaintiff  holding  under  a  tenure  which  implied  fealty." 
It  is  to  be  observed  that  this  was  a  nisi  prius  decision,  and  the  point 
argued  seems  to  have  been  only  whether  the  rent  was  a  rent  service, 
which  it  clearly  was.  The  point  now  raised  does  not  seem  to  have 
been  discussed,  and  it  should  also  be  observed,  that  Mr.  Justice 
Buller  in  his  Nisi  Prius,  p.  57,  cites  the  case  and  apparently  dis- 
approves of  it.  His  words  are :  "  Lord  Coke  says,  if  a  man  make 
a  lease  for  life,  or  a  gift  in  tail,  reserving  a  rent,  tbis  is  a  rent 
service  within  the  Statute :  from  whence  it  may  be  inferred  that  he 
thought  a  rent  reserved  upon  a  lease  for  years  was  not  Avithin 
it :  and  I  apprehend  that  it  is  not,  for  tbe  landlord  is  not  tenant 
in  fee,  fee  tail,  or  for  life,  of  sucb  a  rent;  and  it  is  the  executors 
of  such  tenants  only  who  are  mentioned  in  the  Act.  However,  in 
trespass,  where  it  appeared  that  the  defendant  had  distrained  the 
plaintiff's  goods  for  rent  due  to  his  testator  upon  a  lease  for  years. 
Lord  C.  J.  Lee  held  it  to  be  within  tbe  Statute,  and  the  defendant 
obtained  a  verdict." 

The  next  case  Avas  Merlton  v.  Gilhee,  8  Taunt.  159,  where  the 
point  was  attempted  to  be  raised ;  but  the  court  said,  that  it  did  not 
appear  whether  the  tenancy  was  for  term  of  years  or  for  life.  Then 
came  the  case  of  Martin  v.  Burton,  1  Brod.  &  B.  279,  which  was 
decided  on  the  ground  that  it  did  not  appear  that  the  testator  was 
not  seised  in  fee,  in  tail,  or  for  life.  Afterwards  tbe  case  of  Stam- 
ford V.  Sinclair,  2  Bing.  193,  was  decided  on  the  same  ground, 
though  the  court  in  giving  judgment  examine  into  some  of  the  cases, 
and  into  the  point  now  raised,  which  was  not  necessary  to  the 
determination  of  tbe  case. 

IT|)on  the  Avhole,  therefore,  and  for  the  reasons  stated,  Ave  are  of 
opinion  that  this  case  is  neither  Avithin  the  Avords  nor  the  meaning 
of  the  Statute  32  H.  8,  c.  37,  §1,  and  that  the  judgment  of  the 
court  must  be  for  the  plaintiff.  Judgment  for  the  plaintiff.^ 

1  See  Stat.  3  &  4  Will.  4,  c  42,  §§  37,  38. 


276  THOMAS    V.    SYLVESTER  [CHAP.   VI 

THOMAS  V.  SYLVESTER 
L.  R.  8  Q.  B.  368.     1873. 

Declaration  :  That  the  plaintiff,  being  seised  in  fee  of  certain 
messuages  and  hereditaments  situate,  &c.,  by  indenture  bearing  date 
the  15th  of  January,  1870,  made  by  and  between  the  plaintiff  on  the 
one  part,  and  one  David  Cotter  of  the  other  part,  granted  and  con- 
veyed the  messuages  and  hereditaments  (subject  to  and  charged  and 
chargeable  with  the  payment  forever  to  the  plaintiff,  his  heirs  and 
assigns,  of  a  certain  yearly  rent-charge  of  £2  8s.  6d.  payable  out  of 
each  of  the  said  messuages  and  hereditaments  on  the  24th  of  June 
and  the  21st  of  December  in  each  year),  unto  and  to  the  use  of 
Cotter,  his  heirs  and  assigns;  and  Cotter  in  the  indenture  covenanted 
for  himself,  his  heirs,  executors,  and  administrators,  that  he,  his 
heirs,  executors,  administrators,  or  assigns,  would  pay  unto  the  plain- 
tiff, his  heirs  or  assigns,  the  yearly  rent-charge  on  the  days  aforesaid. 
That  afterwards  all  the  estate  of  Cotter  in  the  premises  became 
vested  in  the  defendants;  and  while  the  estate  was  so  vested  in  the 
defendants,  to  Avit,  on  the  24th  of  June,  1871,  the  rent-charge  accrued 
due  and  became  and  was  payable  from  the  defendants  to  the  plain- 
tiff; yet  the  defendants  did  not  pay  the  same,  and  the  same  remains 
wholly  due  and  unpaid. 

Demurrer  and  joinder  in  demurrer. 

Blackburn,  J.  I  think  the  only  question  which  it  is  neces- 
sary to  decide  is,  whether  the  plaintiff,  the  grantee  of  the  rent- 
charge,  is  entitled  to  compel  the  terre-tenants  to  pay  it  by  a  per- 
sonal action.  I  may  remark  that  the  indenture  may  be  regarded 
as  containing  a  grant  in  fee  of  a  rent-charge  under  the  Statute  of 
Uses,  and  that  a  rent  having  been  duly  created,  debt  will  lie.  Under 
the  old  law  the  remedy  to  recover  a  freehold  rent  was  by  real 
action,  and  as  long  as  the  freehold  continued,  debt  could  not  be  main- 
tained; but  when  the  freehold  estate  came  to  an  end,  then,  inasmuch 
as  a  real  action  could  no  longer  be  brought,  debt  would  lie  at  the 
suit  of  the  person  entitled  to  the  rent-charge.  Thus,  where  a  rent 
was  granted  for  life  the  only  remedy  was  by  real  action,  but  when 
the  life  had  dropped,  debt  was  maintainable.  Leving's  Case,  cited 
in  a  note  to  Fitzherbert,  Natura  Brcvium,  p.  121,  is  a  distinct  author- 
ity that  where  a  rent-charge  for  life  had  been  created,  issuing  out  of 
a  manor  which  was  afterwards  conveyed  to  an  assignee,  and  the 
rent-charge  became  in  arrear,  an  action  of  debt  would  lie  against 
the  assignee  of  the  manor  upon  the  expiration  of  the  life  estate, 
when,  according  to  the  old  law,  a  real  action  could  no  longer  be 
brought  to  recover  the  arrears.  Leving's  Case  is  important,  as  show- 
ing that  the  action  of  debt  is  maintainable  against  an  assignee,  and 
it  is  precisely  in  point  in  the  present  case,  where  the  plaintiff  seeks 
to  recover  the  rent-charge  against  the  assignees  of  the  land.     If 


SECT.    Ill]  THOMAS    V.    SYLVESTER  277 

the  present  case  liad  occurred  before  the  passing  of  3  &  4  Wm.  4, 
c.  27,  the  rent-charge  being  in  fee,  the  plaintiff  wouUl  have  been 
driven  to  a  real  action  to  recover  it.  But  the  Legislature  having 
by  that  Act  abolished  real  actions,  we  have  to  consider  the  question, 
whether  we  must  not  apply  the  principle  of  the  common  law  to  the 
present  case.  The  principle  was,  that,  when  the  estate  for  life  had 
terminated,  an  action  of  debt  for  arrearages  would  lie.  It  seems  to 
me  to  follow,  upon  a  similar  principle,  that  when  the  real  action 
has  been  abolished,  the  grantee  of  a  rent-charge  in  fee  may  main- 
tain an  action  of  debt  against  the  terre-tenant;  and  this  Avas  the 
opinion  of  Pollock,  C.  B.,  in  Varley  v.  Leigh,  2  Ex.  446;  17  L.  J. 
Ex.  289,  though  that  opinion  was  not  necessary  to  the  decision,  and 
Kolfe,  B.,  did  not  concur.  The  authorities  brought  before  us,  how- 
ever, were  not  cited.  I  think  that,  real  actions  being  now  abolished, 
debts  will  lie;  and  that  the  authorities  show  that  it  will  lie  against 
the  assignee  of  the  land  as  well  as  against  the  original  grantor. 

This  is  not  a  question  of  a  covenant  running  with  the  land,  but 
whether,  where  there  is  a  rent  in  fee  issuing  out  of  land,  the  owner 
of  the  rent  may  not  sue  the  terre-tenant  in  debt,  although  the  terre- 
tenant  was  not  the  original  grantor.  It  seems  to  me  that,  according 
to  authority,  reason,  and  justice,  he  may  maintain  the  action. 

QuAiN,  J.  I  am  of  the  same  opinion.  The  distinction  in  the  old 
books  appears  to  be  this :  "  If  a  rent  were  granted  for  years,  debt 
would  lie,  but  if  it  were  granted  in  tail,  or  for  life,  debt 
would  not  lie  for  arrears  until  after  the  freehold  had  determined; 
but  when  the  freehold  had  determined,  then  debt  would  lie,  and  the 
reason  assigned  was  that  the  freehold  remedy  must  be  pursued,  be- 
cause the  law  did  not  suffer  a  real  injury  to  be  remedied  by  an  action 
merely  personal.  Putting  aside  the  remedy  by  real  action,  would 
debt  have  lain  against  an  assignee  who  is  in  possession  of  the  same 
estate  in  the  land  as  the  grantor  of  the  rent?  That  appears  to  be 
decided  in  *S^/>  W.  Loringe's  Case,  cited  in  Ognel's  Case,  4  Co.  Eep. 
at  f .  49  b,  thus :  "A  man  was  grantee  for  life  of  a  rent  out  of  a 
moiety  of  a  manor,  of  which  moiety  a  man  was  seised  in  right  of 
his  wife;  the  rent  was  in  arrear  when  the  grantee  died,  and  the  exe- 
cutors brought  an  action  of  debt  against  the  husband  only  for  the 
arrears.  It  was  resolved:  1.  That  by  the  death  of  the  grantee  for 
life,  the  grant  for  life  was  turned  into  nature  of  debt.  2.  Foras- 
much as  the  husband  took  the  profits  of  the  land  charged  with  the 
rent  when  it  was  arrear,  he  only,  without  his  wife,  should  be  charged 
with  an  action  of  debt."  The  action  was  against  the  person  who  is 
called  the  pernor  of  the  land,  provided  he  had  the  same  estate  as 
the  grantor.  I  apprehend  that  the  reason  is  that  the  land  is  the 
debtor,  as  is  stated  by  "Wilson,  J.,  in  Mills  v.  Auriol,  1  H.  Bl.  at 
p.  445.  If  a  man  comes  into  possession  of  land  as  tenant  in  fee, 
he  is  the  pernor  of  the  profits  of  the  land,  and  was  liable  to  a  real 
action  for  the  non-payment  of  a  rent-charge  created   by  a  former 


278  THOMAS    V.    SYLVESTER  [CHAP.   VI 

tenant  in  fee ;  if  tliis  be  so,  since  real  actions  are  abolished,  an  action 
of  debt  will  lie. 

I  agree  it  is  not  necessary  to  go  into  the  question  whether  the 
covenant  runs  with  the  land. 

Archibald,  J.  I  also  agree  in  thinking  there  is  no  necessity  to 
consider  the  question  in  what  cases  covenants  run  with  the  land.  It 
seems  to  me  to  be  a  question  of  remedy.  When  we  enter  into  the 
reasons  why  debt  would  not  lie  for  the  recovery  of  the  arrears  of  a 
freehold  rent-charge,  it  is  clear  that  there  was  no  oversight  in  abol- 
ishing real  actions  without  providing  for  cases  of  this  kind.  The 
reason  why  debt  did  not  lie  was  that  the  law  did  not  suffer  the  right 
injured  to  be  amended  by  an  action  merely  personal.  It  is  clear 
from  Leving's  Case  that  where  no  real  action  could  be  brought, 
debt  would  lie;  and  inasmuch  as  the  abolishing  of  real  actions  has 
removed  that  remedy,  I  quite  agree  with  my  Brothers  Blackburn 
and  Quain  that  in  the  present  case  the  action  of  debt  is  maintain- 
able, and  therefore  our  judgment  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff.^ 

St.  8  Anne,  c.  14,  §  4.  And  whereas  no  action  of  debt  lies 
against  a  tenant  for  life  or  lives,  for  any  arrears  of  rent,  during 
the  continuance  of  such  estate  for  life  or  lives,  be  it  enacted  by  the 
authority  aforesaid,  That  from  and  after  the  said  first  day  of  May, 
it  shall  and  may  be  lawful  for  any  person  or  persons,  having  any 
rent  in  arrear  or  due  upon  any  lease  or  demise  for  life  or  lives,  to 
bring  an  action  or  actions  of  debt  for  such  arrears  of  rent,  in  the 
same  manner  as  they  might  have  done,  in  case  such  rent  were  due 
and  reserved  upon  a  lease  for  years. 

§  6.  And  whereas  tenants  pvr  aider  vie  and  lessees  for  years, 
or  at  will,  frequently  hold  over  the  tenements  to  them  demised,  after 
the  determination  of  such  leases :  and  whereas  after  the  determina- 
tion of  such,  or  any  other  leases,  no  distress  can  by  law  be  made 
for  any  arrears  of  rent  that  grew  due  on  such  respective  leases  be- 
fore the  determination  thereof;  it  is  hereby  further  enacted  by  the 
authority  aforesaid,  That  from  and  after  the  said  first  day  of  May, 
one  thousand  seven  hundred  and  ten,  it  shall  and  may  be  lawful, 
for  any  person  or  persons,  having  any  rent  in  arrear  or  due  upon 

1  See  13  Law  Quar.  Rev.  288. 

In  England  at  common  law  apparently  neither  the  benefit  nor  the  burden 
of  a  covenant  to  pay  a  fee-farm  rent  ran.  Brewufpr  v.  Kidnill.  12  Mod.  116; 
Milnes  v.  Branch,  5  M.  &  S.  411;  Randall  v.  Bigbu,  4  M.  Sz  W.  ISn  135. 
See  1  Smith  L.  C,  9th  ed.,  91;  Sugden.  Vendor  and  Purch.,  14th  ed..  593-596. 

The  contrary,  however,  has  been  decided  in  the  United  States. 
Scott  V.  Lunt,  7  Pet.  (U.  S.^  596;  Van  Renssalaer  v.  Read,  26  N.  Y.  5.58; 
Tyler  v.  Heidom,  46  Barb.  (N.  Y.)  439;  Strcaper  v.  Fisher.  1  Rawle  (Pa.) 
155;  Herbaugh  v.  Zentmyer,  2  Rawle,  (Pa.)  159;  Hannen  v.  Ewalt,  18  Pa.  9; 
Cook  V.  Brightley,  46  Pa.  439.  But  see  Van  Rensselaer  v.  Platner,  2  Johns. 
Cas.  (N.  Y.)  24. 


SECT.    Ill]  WEBB    V.    JIGGS  279 

any  lease  for  life  or  lives,  or  for  years,  or  at  will,  ended  or  de- 
termined, to  distrain  for  such  arrears,  after  the  determination  of 
the  said  respective  leases,  in  the  same  manner  as  they  might  have 
done,  if  such  lease  or  leases  had  not  been  ended  or  determined. 

§  7.  Provided,  That  such  distress  be  made  within  the  space  of 
six  calendar  months  after  the  determination  of  such  lease  and 
during  the  continuance  of  such  landlord's  title  or  interest,  and  dur- 
ing the  •  possession  of  the  tenant  from  whom  such  arrears  became 
due.^ 


WEBB  V.  JIGGS 
4  M.  &  S.  113.    1815. 


Debt.  The  plaintiff  declares  that  one  J.  Webb  was  seised  in  fee 
of  certain  lands  at  Iver,  in  Buckinghamshire,  and  being  so  seised, 
by  his  will,  duly  executed  according  to  the  Statute,  gave  and  be- 
queathed to  the  plaintiff  an  annuity  or  yearly  rent  of  £10  to  be 
issuing  and  payable  yearly  and  every  year  during  the  life  of  the  de- 
fendant Martha  out  of  the  said  lands,  and  also  gave  and  bequeathed 
the  said  lands  to  the  said  Martha  and  her  assigns  for  her  life,  she 
paying  thereout  in  manner  aforesaid  to  the  plaintiff  the  said  an- 
nuity or  yearly  rent,  and  afterwards  the  said  J.  Webb  died,  and  his 
will  was  duly  proved,  whereupon  the  said  Martha  became  seised  as 
of  a  freehold  for  her  life  of  the  said  lands,  and  the  plaintiff  be- 
came entitled  to  the  said  annuity  or  yearly  rent,  and  afterwards 
the  said  Martha  married  the  other  defendant  Jiggs,  whereby  they 
became  seised  of  the  lands  as  of  freehold  in  right  of  the  said; 
Martha  for  her  life,  and  so  the  plaintiff  avers  that  while  they  were 
so  seised,  and  were  the  pernors  of  the  profits  thereof,  £75  of  the  said 
annuity  or  yearly  rent,  for  seven  years  and  a  half,  ending  on  the 
25th  of  March  1814,  became  due  from  the  defendants  as  the  pernors, 
and  still  is  in  arrear  and  unpaid,  whereby  actio  accrevit,  &c. 

Demurrer.     Joinder. 

Cur.  adiK  vult. 

LoRn  ELLENBOROT^riir,  C.  J.,  on  this  day  delivered  the  judgment  of 
the  court.  After  stating  the  pleadings,  His  Lordship  said :  This 
demurrer  was  argued  at  our  sittings  before  Hilary  Term  in  Serjeants' 
Inn  Hall,  when  it  was  contended  on  the  part  of  the  defendants,  in 
support  of  the  demurrer,  that  at  the  common  law  an  action  of  debt 
will  not  lie  for  n  rent  or  annuity  in  fee,  in  tail,  or  for  life,  Avhile  it 
continues  a  freehold  interest.  And  this  position  was  not  denied  on 
the  other  side,  but  it  was  contended  that  it  applied  only  to  legal 
common  law  estates,  and  not  to  devises  by  will;  and  what  appears 
to  have  been  said  by  Holt,  C.  J.,  in  Eircr  v.  Jones,  reported  in  2  Ld. 

^  For  IpRisliition  in  the  United  States,  see  2  Tiffany,  Landl.  and  Ten., 
p.  1819,  note  7. 


280  walker's  case  [chap,  vi 

Ray.  937,  Salk.  415,  and  6  Mod.  26,  27,  was  relied  on;  viz.,  "That 
a  devisee  may  maintain  an  action  at  common  law  against  the  terre- 
tenant  for  a  legacy  devised  payable  out  of  land.    For  where  a  Stat- 
ute, as  the  Statute  of  Wills,  32  &  34  H.  8,  gives  a  man  a  right,  he 
shall  have  an  action  to  recover  it  of  consequence;  because  his  right 
is  created  by  Act  of  Parliament."     But  what  Lord  Holt  is  there 
stated  to  have  said  does  not  reach  this  objection;  it  is  said  only 
generally  of  a  legacy  or  sum  of  money,  not  of  an  annuity  or  rent  for 
life,  in  tail,  or  in  fee;  and  it  is  to  be  observed,  that  in  the  case  of 
a  legacy  payable  out  of  land,  unless  the  legatee  had  his  remedy  by 
action  of  debt,  founded  on  the  Statute,  he  would  be  wholly  without 
remedy  in  the  courts  of  common  law;  whereas  the  annuitant  would 
not  be  remediless,  but  would  have  an  assise  to  recover  his  annuity. 
And  no  authority  has  been  stated  where  the  general  rule  of  law, 
which  excludes  the  action  of  debt  as  a  remedy  for  rent  or  annuity 
in  fee,  in  tail,  or  for  life,  has  been  confined  to  annuities  or  rents 
created  by  common  law  conveyances,   as  contradistinguished  from 
annuity  or  rents  created  by  devise,  nor  does  there  seem  any  reason 
for  making  the  distinction.     It  was  next  contended  on  behalf  of  the 
plaintiff,  that  this  case  was  within  the  provisions  of  the  4th  section 
of  Stat.  8  Ann.  c.  14,  "  for  the  better  security  of  rents,  and  to  pre- 
vent frauds  by  tenants ;  "  but  the  language  both  of  the  title  of  the 
Act,  and  of  the  enacting  clause,  shows  that  the  Legislature  contem- 
plated only  the  case  of  rent  due  from  a  tenant,  holding  by  lease  or 
demise  under  his  landlord,  —  which  is  not  this  case;  this  being  the 
case  of  two  distinct   and  independent  devises,  of  the  land  to  one 
person   for  life,   and  to  another  of   an   annuity  issuing  out  of  the 
same  for  the  life  of  the  devisee  of  the  land,  created  by  the  will  of 
one  and  the  same  devisor,  and  without  any  such  original  privity 
between  the  devisee  of  the  land  charged  with  the  annuity,  and  the 
devisee   of   the   annuity   charged   thereupon,   as   subsists   between   a 
lessor  and  his  lessee.    We  are  therefore  of  opinion  that  the  action  of 
debt  is  not  maintainable  on  the  ground  of  this  Stat,  of  x\nn.  c.  14, 
any  more  than  it  is  upon  the  other  ground  already  considered. 


WALKER'S  CASE      " 
3  Co.  22a.    1587. 

The  case  was  in  effect :  ^  Walker  leased  certain  lands  to  Harris  for 
years,  the  lessee  assigned  all  his  interest  to  another.  Walker  brought 
an  action  of  debt  against  Harris  for  rent  behind,  after  the  assign- 
ment, and  whether  the  action  were  maintainable  or  not,  was  the 
question.  .  .  .  On  great  deliberation  and  conference  with  others, 
it  was  adjudged  by  Wkay,  L.  C.  J.,  Sir  Thomas  Gawdy,  and  the 

1  Part  of  the  case  is  omitted. 


SECT.  Ill]  walker's  case  281 

whole  Court  of  King's  Bench,  that  the  action  would  lie  (after  such 
assignment). 

And  first  for  the  apprehending  of  the  ti'ue  reason  of  this  case,  and 
of  all  the  other  cases,  which  have  been  urged  on  the  other  side,  for 
the  law  always,  and  in  all  cases,  is  consonant  to  itself),  it  is  to  be 
known,  that  as  to  the  matter  now  in  question  there  are  three  man- 
ner of  privities,  sail,  privity  in  respect  of  estate  only,  privity  in  re- 
spect of  contract  only,  and  privity  in  respect  of  estate  and  contract 
together :  privity  of  estate  only ;  as  if  the  lessor  grants  over  his  rever- 
sion (or  if  the  reversion  escheat)  between  the  grantee  (or  the 
lord  by  escheat)  and  the  lessee  is  privity  in  estate  only,  so  between 
the  lessor  and  the  assignee  of  the  lessee,  for  no  contract  was  made 
between  them.  Privity  of  contract  only,  is  personal  privity,  and 
extends  only  to  the  person  of  the  lessor  and  to  the  person  of  the 
lessee,  as  in  the  case  at  bar,  when  the  lessee  assigned  over  his  in- 
terest, notwithstanding  his  assignment  the  privity  of  contract  re- 
mained between  them,  although  the  privity  of  estate  be  removed 
by  the  act  of  the  lessee  himself ;  and  the  reason  thereof  is,  — 

First,  because  the  lesse.e  himself  shall  not  prevent  by  his  own  act 
such  remedy  which  the  lessor  hath  against  him  by  his  own  contract, 
but  when  the  lessor  grants  over  his  reversion,  there,  against  his  own 
grant,  he  cannot  have  remedy,  because  he  hath  granted  the  reversion 
to  another,  to  which  the  rent  is  incident. 

Secondly,  the  lessee  may  grant  the  term  to  a  poor  man,  who  shall 
not  be  able  to  manure  the  land,  and  who  will,  for  need  or  for  malice, 
suffer  the  land  to  lie  fresh,  and  then  the  lessor  will  be  without  remedy 
either  by  distress  or  by  action  of  debt,  which  would  be  inconvenient, 
and  in  effect  concerns  every  man,  (for,  for  the  most  part,  every  man 
is  a  lessor  or  a  lessee)  ;  and  for  these  two  reasons,  all  the  cases  of 
entry  by  wrong  eviction,  suspension  and  apportionment  of  rent  are 
answered :  for  in  such  cases  either  it  is  the  act  of  the  lessor  himself, 
or  the  act  of  a  stranger;  and  in  none  of  the  said  cases  the  sole  act  of 
the  lessee  himself  shall  prevent  the  lessor  of  his  remedy,  and  intro- 
duce such  inconveniences,  as  hath  been  said. 

The  third  privity  is  of  contract  and  estate  together,  as  between  the 
lessor  and  the  lessee  himself;  and  Wray,  Chief  Justice,  and  Sir 
Tho.  Gawdy  said,  that  as  he  who  is  a  bastard  born  hath  no  cousin, 
"  so  every  case  imports  suspicion  of  its  legitimation,  unless  it  has 
another  case  which  shall  be  as  a  cousin-german,  to  support  and  prove 
it."  And  therefore  it  was  agreed  by  the  whole  court,  that  if  there 
be  lord  and  tenant,  and  the  tenant  makes  a  feoffment  in  fee,  in  this 
case  betwixt  them  for  the  arrearages  due  as  well  before  the  feoffment 
as  after,  till  notice,  &e.,  it  is  only  ])rivity  as  to  avowry,  and  not  any 
privity  in  estate  or  in  temire,  whicli  ])rivity  shall  not  go  with  the 
estate,  and  yet  it  is  more  in  the  realty  tlum  the  case  at  bar;  a  fortiori 
in  the  case  at  bar,  when  the  lessee  assigns  his  interest,  yet  privity 
of  contract  between  the  lessor  and  lessee,  as  to  the  action  of  debt, 


282  walker's  case  [chap,  vi 

remains.  And  at  the  common  law,  before  the  Statute  of  Quia  Emp- 
tores  terrarum,  if  the  tenant  made  a  feoffment  in  fee  to  hold  of  the 
the  chief  lord,  the  feoffee  could  not  by  any  tender  that  he  could  make, 
compel  the  lord  to  avow  on  him,  but  the  lord  always  might  avow  on 
the  feoffor,  as  appears  in  33  E.  3,  Avowry,  255.  For  by  his  own  act 
he  cannot  change  the  avowry  of  his  lord;  which  is  a  stronger  case 
than  the  case  at  bar :  and  in  the  same  case,  if  the  lord  granted  oVer 
his  seigniory,  or  if  the  feoffor  died,  there  the  privity,  as  to  avowry, 
is  destroyed ;  for  it  is  personal,  and  holds  only  between  the  lord  him- 
self and  the  feoffee  himself :  so,  if  after  the  assignment  of  the  lease, 
the  lessor  grants  over  his  reversion,  the  grantee  shall  not  have  an 
action  of  debt  against  the  lessee,  for  the  privity  of  contract,  as  to 
the  action  of  debt,  holds  only  betwixt  the  lessor  himself  and  the 
lessee  himself:  so  in  such  case,  if  the  lessee  dies,  the  lessor  shall 
not  have  an  action  of  debt  against  his  executors ;  for  the  privity  con- 
sists only  between  the  lessor  and  the  lessee.  See  for  the  case  of 
avowry,  Litt.  Chap.  Releases,  106,  107;  4  E.  3,  22;  2  E.  4,  6;  34  H. 
6,  46;  37  H.  6,  33;  7  E.  4,  28;  24  H.  8,  Dy.  4;  29  H.  8,  tit.  Avow. 
Br.  111. 

So  if  tenant  in  dower,  or  tenant  by  the  curtesy,  grants  over  their 
estate,  yet  the  privity  of  action  remains  between  the  heir  and  them, 
and  he  shall  have  an  action  of  waste  against  them  for  waste  com- 
mitted after  the  assignment :  but  if  the  heir  grants  over  the  reversion, 
then  the  privity  of  the  action  is  destroyed,  and  the  grantee  cannot 
have  any  action  of  waste,  but  only  against  the  assignee;  for  between 
them  is  privity  in  estate,  and  between  the  grantee  and  the  tenant  in 
dower,  or  tenant  by  the  curtesy,  is  no  privity  at  all.  See  E.  ^.  B. 
56,  f.  temp.  E.  1,  Waste,  122;'l8  E.  3,  3;  30  E.  3,  16;  36  or  38  E. 
3,  23;  11  H.  4,  18.  And  it  was  agreed,  that  if  the  lessor  enters 
for  condition  broken,  or  if  the  lessee  surrenders  to  the  lessor,  now 
the  estate  and  term  is  determined,  and  yet  the  lessor  shall  have  an 
action  of  debt  for  the  arrearages  due  before  the  condition  broken, 
or  the  surrender  made,  as  it  appears  by  F.  X.  B.  120;  30  E.  3,  7; 
6  H.  7,  3  b;  F.  N".  B.  122  (against  the  book  of  32  E.  3  Bar.  262, 
which  is  not  law),  and  that  in  respect  of  the  contract  between  the 
lessor  and  the  lessee.  Note,  reader,  so  great  was  the  authority  and 
consequence  of  this  judgment,  that  after  this  time,  not  only  the 
point  adjudged  hath  been  always  affirmed,  but  also  all  the  differences 
in  this  case  taken  by  Wray,  C.  J.,  and  the  court  have  been  adjuda;ed, 
as  you  may  learn  by  the  cases  following  Hil.  36  Eliz.  in  the  K.'s  B. 
Rot.  420,  between  Ungle  and  Glover  it  was  adjudged,  that  if  the  lessee 
for  years  assigns  over  his  interest  and  the  lessor  by  deed  indented  and 
enrolled  according  to  the  Statute,  bargains  and  sells  the  reversion 
to  another,  that  the  bargainee  shall  not  have  an  action  of  debt 
against  the  lessee,  for  there  is  no  privity  betwixt  them.'^  But  it 
was  unanimously  agreed  by  Popham,  Chief  Justice,  Clench,  Gawdy, 
1  But  see  Rowland  v.  Coffin,  post,  p.  284. 


SECT.  Ill]  walker's  case  283 

and  FEX^•ER,  Justices,  that  after  the  assignment  the  lessor  himself 
might  have  an  action  of  debt  against  the  lessee  for  rent  due  after  the 
assignment.^  Trin.  37  Eliz.  in  the  King's  Bench,  Rot.  1042,  between 
Overton  and  Sydhall,  two  points  were  resolved  by  Popham,  C.  J., 
and  the  whole  court. 

1.  That  if  the  executor  of  a  lessee  for  years  assigns  over  his  in- 
terest, that  an  action  of  debt  doth  not  lie  against  him  for  rent  due 
after  the  assignment. 

2.  If  the  lessee  for  years  assigns  over  his  interest,  and  dies,  the 
executor  shall  not  be  charged  for  rent  due  after  his  death;  for,  by 
the  death  of  the  lessee,  the  personal  privity  of  contract,  as  to  the 
action  of  debt  in  both  cases,  was  determined.     And  Mich.  40  &  41 
Eliz.  between  George  Brome,  Esq.,  plaintiff,  and  Hore,  defendant, 
the  case  in  effect  was  such :   A.  leased  to  C.  3  acres  of  land  for  years 
rendering  rent,  the  said  C.   assigned  all  his  estate  in  one  acre  to 
another,  A.  suifered  a  common  recovery  to  the  use  of  B.  in  fee, 
who  brought  an  action  of  debt  against  the  first  lessee,  and  it  was 
adjudged  by  Popham,  C.  J.,  and  the  whole  court,  that  the  action 
did  lie;  for  inasmuch  as  the  lessee  had  assigned  his  interest  but  in 
part,  and  remained  possessed  of  the  residue,  that  not  only  the  lessor, 
but  also  his  assignee,  or  he  who  claimeth  under  him  shall  have  an 
action  of  debt  for  the  whole  rent  against  the  lessee,  for  there  was 
not  privity  of  contract  only,  but  also  privity  in  estate  and  contract 
together;   and   therefore   the   action   in   this  case  shall  go  with  the 
estate;  as  at  common  law,  if  before  the  Statute  of  Quia  Emptorcs 
terrarum  the  tenant  had   made  a  feoffment  in   fee  of  part   of  the 
tenancy,    there   was    not    any   apportionment,    but   the   lord,    or   his 
grantee,  should  avow  on  the  feoffor  for  as  much  as  he  remained 
tenant  in  respect  of  the  residue:  but  if  he  had  made  a  feoffment  of 
the  whole,  then  the  grantee  of  the  lord  should  not  avow  on  him,  as 
it  hath  been  said  before.    See  22  Ass.  52;  24  H.  8,  4  b;  32  H.  8,  Br. 
Accept,   for  this  matter.     And  Popham,   C.   J.,   in  this  case  said, 
that  in  case  when  rent  reserved  on  a  lease  for  years  shall  be  appor- 
tioned, if  in  an  action  of  debt  the  lessor  demands  more  quam  oportet; 
yet  on  nihil  debet  the  lessor  shall  recover  as  much  as  shall  be  appor- 
tioned and  assessed  by  the  jury,  and  shall  be  barred  for  the  residue. 
And  Pasch.  41  Eliz.  Rot.  2485,  in  the  Common  Pleas,  Samuel  Mar- 
row  brought    an    action    of   debt    against   Francis    Turpin   and    IF., 
Turpin,  administrators  of  Geo.   Turpin,  and  declared  on  a  demise 
made  by  the  plaintiff  by  deed  indented  of  certain  land  to  the  intestate 
for  years  rendering  rent,   and   for  rent  behind   after  the  death  of 
the  intestate,  the  action  was  brought;  the  defendants  pleaded,  that 
before  the  rent  behind,  one  of  the  defendants  had  assigned  all  his 
interest  to  Thomas  Boorde,  of  which  assignment  the  plaintiff  had 
notice,  and  accepted  the  rent  by  the  hands  of  the  assignee,  duo  at 

1  And  see  HnzeUon  v.  Chafin.  197  Par.  (Kan.)  870.  871;  Knnnwha-Gaulcy 
Coal  Co.  V.  Sharp,  73  W.  Va.  427,  430;  52  L.  R.  A.  N.  S.  968  note. 


284  HOWLAND    V.    COFFIN  [CHAP.   VI 

a  day  after  the  assignment,  and  before  tlie  day  on  wliieh  the  rent  was 
due  which  is  now  demanded,  upon  which  the  plaintiff  did  demur. 
And  it  was  adjudged  against  the  plaintiff,  because  the  privity  of 
the  contract,  as  to  the  action  of  debt,  was  determined  by  the  death 
of  the  lessee;  and  therefore,  after  assignment  made  by  the  adminis- 
trator, debt  did  not  lie  against  the  administrator  for  rent  due  after 
the  assignment,  according  to  the  judgment  given  in  Overton  and 
SydhaU's  Case  before. 

Also  it  was  said,  if  the  lessee  assigns  over  his  term,  the  lessor  may 
charge  the  lessee  or  his  assignee  at  his  election ;  ^  and  therefore  if 
the  lessor  accepts  the  rent  of  the  assignee,  he  hath  determined  his 
election,  and  shall  not  have  an  action  against  the  lessee  afterwards 
for  rent  due  after  the  assignment,-  no  more  than  if  the  lord  once 
accepts  the  rent  of  the  feoffee,  he  shall  not  avow  on  the  feoffor;  and 
by  these  judgments  and  resolutions  you  will  the  better  understand 
your  books;  betwixt  which  prima  facie  seems  to  be  some  diversity 
of  opinions.  Vide  44  E.  3,  5,  &  44  Ass.  18;  9  H.  6,  52,  by  Paston, 
which  agree  with  the  judgment  of  Sir  Christopher  Wray.  See  8 
Eliz.  Dyer,  247,  and  the  qucere  there  made  is  now  well  resolved. 


HOWLAND  ET  AL.  v.  corri:^^ 

12  Pick.  (Mass.)  125.    1831. 

This  was  an  action  of  debt  for  rent  from  June  3,  1823,  to  Decem- 
ber 3,  1824,  and  from  June  3,  1825,  to  December  3,  1829,  at  $75 
a  year. 

It  was  agreed  that  the  premises  for  which  the  rent  was  claimed, 
were,  on  May  6,  1822,  the  property  of  Uriah  Brownell,  who,  on  that 
day,  by  an  instrument  under  seal,  demised  the  same  to  one  John 
Randolph  for  the  term  of  twelve  years  from  that  date,  Randolph 
yielding  rent  therefor  at  the  rate  of  $75  a  year,  payable 
semi-annually.  The  defendant  purchased  all  the  right  which  Ran- 
dolph had  in  the  premises,  and  afterwards  the  plaintiffs  purchased 
all  the  right  which  Brownell  had  therein. 

If  the  defendant  was  bound  to  pay  the  amount  of  rent  reserved 
in  the  indenture  of  lease,  he  was  to  be  defaulted  and  damages  to 
be  assessed   accordingly;   but  if  he  had   a   right  to   show  that   the 

1  Lessor  may  sue  assignee  of  lessee  in  debt,  McKeon  v.  Whitney,  3  Den. 
(N.  Y.)  452. 

-  Marsh  v.  Brace,  Cro.  Jas.  334,  accord.  See  Harmony  Lodge  v.  White, 
30  Ohio  St.  569.  Compare  Manley  v.  Dupuy,  2  Whart.  (Pa.)  162;  Adams 
v.  Burke,  21  R.  I.  126,  post,  p.  389  ;  52  L.  R.  A.  N.  S.  973  note. 

Whether  an  assignee  of  a  lease  is  liable  for  rent  acciiiing  after  he  has 
reassigned  the  premises,  see  Johnson  v.  Sherman,  15  Cal.  287;  Hartman  v. 
Thompson,  104  Md.  389;  Harmon  Co.  v.  Star  Breimng  Co.,  232  Mass.  566; 
Meyer  v.  Alliance  Co.,  86  N.  J.  L.  694,  affirming  84  N.  J.  L.  450;  Durand  v. 
Curtis,  57  N.  Y.  7. 


SECT.    Ill]  HOWLAND    V.    COFFIN  285 

premises  were   not   of   that   annual   A-alue,   a    new   trial   was  to   be 
granted  and  damages  to  be  assessed  by  the  jury. 

"Wilde  J.  delivered  the  opinion  of  the  Court.  We  entertain  no 
doubt,  notwithstanding  the  dictum  in  Walker's  case,  3  Co.  Rep.  22, 
that  this  action  is  w^ell  maintained.  The  only  point  of  defence 
now  made  was  recently  decided  by  this  Court  in  an  action  between 
the  same  parties,  and  we  have  heard  nothing  since  to  change  the 
opinion  Ave  then  formed.  The  action  is  founded  on  a  privity  of 
estate  between  the  parties.  The  defendant  took  the  term  subject 
to  all  the  advantages  and  disadvantages  attached  to  it  by  the  terms 
of  the  lease.  The  covenant  for  the  payment  of  rent  ran  with  the 
land  and  by  the  assignment  of  the  term  became  binding  on  the  de- 
fendant. So  by  the  assignment  of  the  reversion  the  plaintiffs  became 
entitled  to  all  the  rights  of  the  lessor.  It  is  said  in  note  6,  1 
Wms's  Saund.  '241,  that  at  common  law  an  action  of  debt  lay  for 
the  assignee  of  the  reversion,  for  the  recovery  of  rent,  which  is 
incident  to  the  reversion.  And  if  this  were  not  so  at  common  law,  it 
is  clearly  so  by  the  statute  of  32  Hen.  8,  c.  34,  which  seems  to  have 
been  overlooked  in  Walher's  ca.'tp.  The  law  there  laid  down  on  the 
point  in  question,  is  not  supported  by  the  subsequent  authorities, 
and  cannot  be  sustained  on  principle  or  any  reasonable  construction 
of  the  statute.  Walker's  case,  though  decided  right  as  to  the  question 
on  Avhicli  the  case  turned,  has  since  been  questioned  as  to  other 
points  not  now  under  consideration,  and  which  therefore  it  is  not 
necessary  now  to  discuss.  Vide  Hammond  on  Parties  to  Actions, 
116  to  133. 

According  to  the  agreement  of  the  parties,  the  defendant  is  to  be 
defaulted.'^ 

1  See  Collins  v.  Pratt,  181  Mass.  345;  Tnylor  v.  Kennedy,  228  Mass.  390; 
Reidy  v.  Kennedy,  233  Mass.  514. 

In  Thursby  v.  Plant,  1  Lev.  259,  a  les.see  who  covenanted  to  pay  rent 
was  held  liable  in  covenant  to  the  assignee  of  the  lessor.  And  in  debt 
in  Outtoun  v.  DuKn,  72  Md.  536.  Compare  English  v.  Key,  39  Ala.  113; 
Daviren  v.  American  Power  Co.,  91   Me.  334,  337. 

"  Where  a  lessee  for  a  term  of  years  parts  with  his  whole  term  to  a 
third  party,  it  is  called  an  assignment,  and  the  assignee  thereby  becomes 
the  tenant  of  the  original  lessor  and  subject  to  all  the  covenants  in  the 
lease,  which  run  with  the  land,  just  as  the  lessee  was.  The  privity  of 
estate  and  privity  of  contract  still  subsist  between  the  lessor  and  assignee, 
as  it  did  between  the  les.sor  and  lessee.  Taylor's  Landlord  and  Tenant,  §§ 
436-37.  But  when  a  tenant  makes  a  lease  for  a  less  niunber  of  j'ears  than 
his  own  term,  it  is  not  an  assignment,  but  is  called  an  underlease;  and  it 
is  well  settled  that  as  between  the  original  lessor  and  the  undertenant  there 
is  neither  privity  of  estate  nor  contract,  so  that  between  these  parties  no 
advantage  can  be  taken  of  the  covenants  in  the  lease,  and  therefore  the  lessor 
can  not  sue  an  undertenant  upon  the  lessee's  covenant  to  pay  rent,  nor  can 
he  maintain  an  action  for  use  and  occupation  against  the  undertenant 
unless  under  an  agreement,  as  the  relation  of  landlord  and  tenant  does  not 
subsist  between  them.  Holjord  v.  Hatch,  Doug.  183;  Cnuwe  v.  Bughy,  3 
Wils.,  234;  Strange  405;  Style,  483;  Taylor's  L.  &  T.,  §§  108,  448,  and  note, 


286  WINNISIMMET   TRUST   CO.    V.    LIBBY  [CHAP.   VI 

WIlSrNISIMMET  TKUST  CO.  7;.  LIBBY  ET  AL. 
232  Mass.  491.    1919. 

Contract  for  rent  alleged  to  be  due  to  the  plaintiff  upon  Decem- 
ber 2,  1916,  and  January  2  and  February  2,  1917,  as  assignee  of  the 
rent  from  the  lessor  of  premises  known  as  the  "Dream  Theatre" 
in  that  part  of  Saugus  known  as  Cliftondale,  of  which  the  defendants 
were  lessees.  "Writ  in  the  Municipal  Court  of  the  City  of  Boston 
dated  February  10,  1917. 

At  the  trial  in  the  Municipal  Court  it  appeared  that  on  March 
2,  1916,  the  original  owner  of  the  premises,  James  S.  Duval,  let 
the  premises  by  an  instrument  in  writing  to  the  defendants  for  the 
term  of  three  years;  that  on  April  27,  1916,  Duval  executed  and 
delivered  to  the  plaintiff  an  assignment  under  seal  of  rents  to  fall 
due  under  the  lease  (excepting  the  rent  for  the  last  three  months)  as 
security  for  a  debt;  that  on  October  16,  1916,  Duval  conveyed  the 
premises  by  quitclaim  deed  to  one  George  W.  Green;  that  this  deed 
was  recorded  on  October  17,  1916;  that  Duval  did  not  notify  the 
defendants  or  Green  of  the  assignment  to  the  plaintiff;  that  on 
November  1,  1916,  Green,  and  on  jSTovember  2,  1916,  Duval,  by 
notices  in  writing  directed  the  defendants  to  pay  rent  to  Green,  the 
purchaser;  that  on  N'ovember  28,  1916,  for  the  first  time,  the  plain- 
tiff notified  the  defendants  of  its  assignment  and  requested  payment 
of  rents  described  therein  to  it,  and  that  the  defendants  paid  to 
Green  the  rent  falling  due  on  N^ov ember  2  and  December  2,  1916, 
and  January  2,  1917. 

By  various  requests  for  rulings  which  were  refused  by  the  judge, 
the  defendants  raised  the  question  stated  in  the  opinion.  The 
judge  found  for  the  plaintiff  in  the  sum  of  $153.75  and,  at  the  re- 
quest of  the  defendants,  reported  the  case  to  the  Appellate  Division. 
The  report  was  dismissed,  and  the  defendants  appealed. 

Pierce,  J.  This  is  an  action  of  contract  brought  to  recover 
certain  rents  reserved  under  a  written  lease  given  by  the  plaintiff's 
assignor  to  the  defendants.  The  defendants'  requests  for  rulings 
raise  the  question  whether  an  assignment  under  seal,  of  rent  to 
become  due  under  a  written  lease  for  a  term  less  than  seven  years 
after  notice  to  the  lessee,  is  effectual  as  against  a  subsequent  pur- 
chaser of  the  lessor's  reversion  without  notice  of  the  prior  assignment. 
When  rent  is  reserved,  it  is  incident,  though  not  inseparably  so, 
to  the  reversion.  Co.  Litt.  143  a,  151  b.  The  rent  may  be  granted 
away  reserving  the  reversion;  and  the  reversion  may  be  granted 
away  reserving  the   rent   by  special  words.^     By   a  general  grant 

Com.,  Dig.,  cov.  (e.  3.)  Kennedy  v.  Cope,  Doug.  56."  —  Per  Bynum,  J.,  in 
Krider  v.  Rammy,  79  N.  C.  354,  357.  See  Girard  Trust  Co.  v.  Cosgrove.  113 
Atl.   (Pa.)   741;    1  Tiffany,  Land),  and  Ten.,  §   151. 

1  See   Crosby  v.  Loop,  13  111.  625;   Brownson  v.  Roy,   133  Mich.  617; 
Moffat  v.  Smith,  4  N.  Y.  126. 


SECT.    Ill]  WINNISIMMET   TRUST    CO.    V.    LIBBY  287 

of  the  reversion  the  rent  will  pass  Avith  it  as  an  incident  to  it; 
but  by  a  general  grant  of  the  rent  the  reversion  will  not  pass. 
Demarest  v.  WUlard,  8  Cowen,  206.  Burden  v.  Thayer,  3  Met. 
76.    Beal  v.  Boston  Car  Spring  Co.  125  Mass.  157. 

Rent,  that  is  the  right  to  recover  future  instalments  of  rent  as 
they  become  due  under  the  lessee's  covenant  to  pay  rent  in  the 
future,  is  not  a  chose  in  action,  but  is  an  incorporeal  interest  in 
land  which  can  be  assigned  only  by  an  instrument  under  seal. 
"When  assigned,  the  assignee  holds  the  interest  in  his  own  right 
and  may  sue  for  it  in  his  own  name.  Patten  v.  Deshon,  1  Gray, 
325,  327.    Bridgham  v.  Tileston,  5  Allen,  371. 

In  this  Commonwealth  a  lease  for  less  than  seven  years  from 
the  making  thereof  is  valid  against  hona  -fide  purchasers  without 
actual  notice.  R.  L.  c.  127,  §  4.  Toupin  v.  Peahody,  162  Mass. 
473,  477.  A  like  exemption  from  the  operation  of  the  recording 
acts  necessarily  attaches  to  that  incorporeal  interest  in  real  estate 
denominated  rent  when  severed  from  the  reversion  to  which  it  is 
an  incident.  A  similar  rule  is  applied  to  existing  uiirecorded 
easements.     Shaughnessey  \.  Leary,  162  Mass.  108,  112. 

The  request  of  the  defendants  for  a  ruling  that  "A  deed  of  the 
leased  premises,  accompanied  by  a  written  direction  from  the 
lessor  to  the  lessees  to  make  the  payments  due  under  the  lease  to 
the  new  owner,  gives  the  new  owner  rights  which  are  superior  to 
an  assignee  of  the  rents  where  no  notice  of  the  assignment  is 
given,  either  to  the  lessee  or  to  the  grantee  of  the  premises  until 
after  the  deed  of  the  premises  has  been  delivered,"  could  not  have 
been  given,  because  the  lessor  was  not  the  owner  of  the  rent  when 
he  directed  the  lessee  to  make  payment  of  the  rents  to  the  pur- 
chaser of  the  reversion,  and  because  a  man  cannot  grant  nor  charge 
that  which  he  has  not.  Jones  v.  Richardson,  10  Met.  481.  Moody 
V.  Wright,  13  Met.  17.  Codman  v.  Freeman,  3  Cush.  306.  The 
assignment  of  rent  is  governed  by  the  rule  of  caveat  emptor. 
Stone  V.  Patterson,  19  Pick.  476.  Taylor  v.  Kennedy,  228  Mass. 
390,  relied  on  by  the  defendants,  does  not  support  their  contention, 
because  in  that  case  the  plaintiffs  claimed  to  recover  in  their  own 
name  the  rent  "  under  a  contemporaneous  parol  agreement  .  .  . 
that  the  plaintiffs  should  collect  the  rent  for  the  remainder  of  the 
term  and  pay  it  to  the  grantee."  It  is  plain  that  that  action 
could  not  be  maintained  by  the  plaintiff  as  assignee  of  the  rent 
or  under  an  equitable  assignment  of  the  right  to  collect  rent. 
Bridgham  v.  Tileston,  supra. 

It  follows  that  the  order  of  the  Municipal  Court,  "Report  dis- 
missed," is  affirmed.  So  ordered.'- 

^  A  lessee  for  years  who  has  as.«igned  his  whole  term  rendering  rent  may 
recover  in  an  action  of  debt  rent  from  such  assignee.  Nrrrromb  v.  Harvey, 
Carth.  161.  See  Patten  v.  Deshon,  1  Gray  (Mass.)  325;  Williams  v.  Hayward, 
1  E.  &  E.  1040. 


288  HORN    V.   BEARD  [CHAP.   VI 

HORN  V.  BEARD 
[1912]  3  K.  B.  181.    1912. 

Appeal  from  the  "Westminster  County  Court. 

The  facts  are  stated  at  length  in  the  judgment  of  the  Court  de- 
livered by  Lush  J.  The  following  is  a  short  statement  sufficient 
to  indicate  the  point  decided. 

The  defendant  was  tenant  of  a  flat  in  Jermyn  Street  for  a  term 
of  three  years  from  Midsummer,  1908,  at  a  yearly  rent  of  160/. 
His  lessors  were  Messrs.  Adams  and  Biggs,  who  were  the  free- 
holders. The  defendant  regularly  paid  his  rent  to  a  firm  of  solici- 
tors, Messrs.  Le  Brasseur  &  Oakley,  who  acted  as  agents  for  Adams 
and  Biggs,  the  lessors.  Adams  and  Biggs  mortgaged  their  reversion 
to  the  Yorkshire  Penny  Bank,  who  went  into  possession  and  made 
a  lease  for  twenty-one  years  to  the  plaintiff  to  take  effect  in  prsesenti. 

The  defendant  knew  nothing  of  the  mortgage  to  the  bank  or  of 
the  lease  by  the  bank  to  the  plaintiff.  When  the  defendant  took  his 
lease  the  plaintiff  was  manager  of  the  flats  and  was  known  to  the 
defendant  in  that  and  in  no  other  capacity.  When  the  plaintiff 
became  lessee  to  the  Yorkshire  Penny  Bank,  Le  Brasseur  &  Oakley 
acted  as  agents  for  him  and  continued  to  receive  the  rent  paid  by  the 
defendant. 

In  October,  1910,  certain  building  operations  were  being  carried 
on  in  adjoining  premises.  The  defendant  complained  that  they 
constituted  a  nuisance  and  made  his  flat  uninhabitable.  He  wrote 
to  Messrs.  Le  Brasseur  &  Oakley  saying  that  he  would  not  pay  the 
rent  due  on  December  25,  1910. 

In  November,  1910,  the  plaintiff  offered  to  pay  the  defendant 
40Z.,  20?.  down  and  201.  at  the  end  of  the  defendant's  lease,  for  the 
right  to  let  the  flat  if  he  could  find  another  tenant.  The  defendant, 
supposing,  as  he  said,  that  the  plaintiff  was  still  acting  as  manager 
of  the  flats,  accepted  the  offer. 

Soon  after  Midsummer,  1911,  when  his  lease  terminated,  the 
defendant  claimed  the  201.  payable  under  the  agreement.  The 
plaintiff  then  brought  an  action  in  the  county  court  for  40/.,  being 
rent  for  the  quarter  ending  December  25,  1910,  which  had  not  been 
paid,  and  giving  credit  for  the  20/.  due  under  the  agreement.  The 
defendant  denied  that  the  plaintiff  was  his  landlord  and  on  that 
footing  counter-claimed  for  that  20/.  In  that  alternative,  if  it 
should  be  held  that  the  plaintiff  was  his  landlord,  he  claimed  damages 
for  eviction  and  disturbance. 

The  county  court  judge  gave  judgment  for  the  plaintiff  on  the 
claim  and  counter-claim.  As  to  the  claim  he  held  that  there  had  been 
an  attornment  by  the  defendant  to  the  plaintiff  and  that  the  rent 
was  therefore  due.  As  to  the  counter-claim  he  held  on  the  facts  that 
the  agreement  of  November,  1910,  by  the  plaintiff  to  pay  the  40/. 


SECT.   Ill]  HORN    V.    BEARD  289 

was   partly   in   consideration    of   the   inconvenience   wMcli   the   de- 
fendant had  suffered  through  the  building  operations. 

The  defendant  appealed. 

As  appears  from  the  judgment  below,  the  Court,  differing  from 
the  county  court  judge,  held  that  there  was  no  evidence  of  any 
attornment  by  the  defendant  to  the  plaintiff.  As  to  the  counter- 
claim they  found  no  evidence  that  the  agreement  of  November, 
1910,  had  any  reference  to  the  disturbance  or  eviction  of  the 
defendant. 

The  only  point  of  law  argued  was  whether  in  order  to  entitle 
the  plaintiff  to  recover  the  rent  due  on  December  25,  1910,  an 
attornment  by  the  defendant  was  necessary; 

Lush  J.^  On  these  facts  the  plaintiff  contended  before  the  learned 
county  court  judge  that  the  defendant  had  attorned  and  become 
his  tenant.  This  the  defendant  denied.  The  learned  judge  held 
that  the  defendant  had  negotiated  with  the  plaintiff  as  his  landlord 
in  respect  of  the  building  operations,  and  that  the  correspondence 
with  the  plaintiff  as  his  landlord  amounted  to  an  attornment  en- 
titling the  plaintiff  to  sue  for  the  rent.  We  do  not  think  that  on 
the  correspondence  there  is  any  sufficient  evidence  of  aji  attorn- 
ment. It  appears  to  us  that  the  correspondence  shews  the  contrary. 
The  defendant  more  than  once  asked  for  information  as  to  what 
the  plaintiff's  interest  in  the  premises  was,  and  never  could  obtain 
an  answer  until  after  the  tenancy  had  come  to  an  end,  and  the 
plaintiff,  in  our  opinion,  failed  to  establish  an  attornment. 

Before  us,  however,  Mr.  Carthew,  on  behalf  of  the  plaintiff,  con- 
tended that  by  reason  of  the  statute  4  &  5  Ann.  c.  3  ^  no  attorn- 
ment was  necessary.  He  contended  that  the  lease  from  the  mort- 
gagees to  the  plaintiff  was  the  grant  of  a  reversion  within  the  meaning 
of  the  statute,  and  that  therefore  the  necessity  of  an  attornment 
was  dispensed  with.  We  are  of  opinion  that  this  contention  is  well 
founded.  The  statute  says  that  "  all  grants  or  conveyances  there- 
after to  be  made  by  fine  or  otherwise  of  any  manors  or  rents  or 
of  the  reversion  or  remainder  of  any  messuages  or  lands  shall  be 
good  and  effectual  to  all  intents  and  purposes  without  any  attorn- 
ment of  the  tenants  ....  as  if  their  attornment  had  been  had  and 
made."  It  is  not  possible  now,  having  regard  to  the  authorities, 
to  contend  that  a  lease  for  years  is  not  the  grant  of  a  reversion 
expectant  on  the  determination  of  an  existing  shorter  term  if  the 
lease  is  made  to  take  effect  in  prcesenti.  In  Piatt  on  Leases,  vol.  2, 
pp.   57   and   58,   the  following  passage  occurs:    "When,   during   a 

1  The  court's  statement  of  the  facts  and  its  opinion  on  the  counterclaim 
are  omitted. 

2  Stat.  4  <fe  5  Anne,  c.  3  (c.  16  in  the  common  printed  editions),  §  9.  Section 
10  is  as  follows:  "Provided  nevertheless,  That  no  such  tenant  shall  be 
prejudiced  or  damaged  by  payment  of  any  rent  to  any  such  grantor  or 
conusor  or  by  breach  of  any  condition  for  non-payment  of  rent,  before  notice 
shall  be  given  to  him  of  such  grant  by  the  conusee  or  grantee." 


290  HORN    V.    BEARD  [CHAP.   VI 

subsisting  lease,  a  second  lease  is  made,  to  commence  immediately, 
for  a  longer  term  than  the  unexpired  estate  under  the  former,  it 
is  concurrent  with  the  former  in  point  of  interest  and  computation 
of  time,  and  operates  as  an  immediate  lease  of  the  reversion.  Be- 
fore the  statute  of  Anne  (4  &  5  Anne,  chapter  3),  section  9,  such  a 
lease,  unaccompanied  by  attornment,  would  have  operated  as  a  grant 
of  a  future  interest  in  reversion,  conferring  an  interesse  termini 
only,  the  reversion  remaining  in  the  grantor;  but  if  the  first  lessee 
attorned,  a  reversion  in  respect  of  that  lease  would  have  passed, 
conferring  on  the  grantee  a  right  to  the  rent  payable  by  such  first 
lessee;  and  it  is  apprehended  that  such  second  lease  would  now,  in 
general,  pass  a  reversion,  together  with  a  right  to  the  rent  under 
the  former  lease,  without  attornment,  that  ceremony  having  been 
rendered  unnecessary  by  the  statute  referred  to."  In  the  case  of 
Birch  V.  Wright,  (1786)  1  T.  R.  378,  at  p.  384,  Buller,  J.  says:  "  The 
statute  enacts,  that  all  grants  or  conveyances  thereafter  to  be  made 
by  fine  or  otherwise,  of  any  manors,  rents,  reversions,  or  remainders, 
shall  be  good  and  effectual  to  all  intents  and  purposes,  without  any 
attornment  of  their  tenants,  as  if  their  attornment  had  been  made. 
This  clause  comprehends  all  grants  and  conveyances,  and  therefore 
whether  it  be  a  grant  by  way  of  mortgage,  or  of  the  fee  simple,  or 
only  of  the  reversion  for  a  term  of  years,  as  in  the  present  case,  it 
makes  no  difference.  And  the  effect  of  the  clause  is,  that  it  creates 
an  immediate  privity  between  the  grantee  and  the  tenant."  See 
also  the  summing  up  of  Parke  B.  in  Harmer  v.  Bean,  (1853)  3  Car. 
&  K.  307,  and  the  case  that  was  cited  to  us  of  Wright  v.  Burroughes, 
3  C.  B.  685.  Sir  W.  Page  Wood  V.-C.  appears  to  have  held  the  con- 
trary in  Edwards  v.  Wickivar,  L.  B.  1  Eq.  403,  but  in  a  note  to  the 
report  of  the  same  case  in  the  Laiv  Journal,  35  L.  J.  (Ch.)  309,  it 
is  pointed  out  that  the  statute  was  not  cited  in  the  argument  in  that 
case,  so  that  the  decision  is  not  really  a  decision  to  the  contrary. 
That  being  so,  the  plaintiff  established  his  right  to  maintain  the 
action. 

With  regard  to  the  counter-claim,  however,  the  learned  county 
court  judge  held  that  the  40/.  Avas  paid  by  the  plaintiff  to  the  de- 
fendant as  a  solatium  for  his  loss  of  the  use  of  the  flat  during  the 
quarter  in  question.  In  our  opinion  there  was  no  evidence  to  sup- 
port this  finding.  Appeal  allowed} 

1  McDonald  v.  Hanlon,  79  Cal.  442;  Benjamin  v.  Northwestern  Fire  Ins. 
Co.,  119  Minn.  27;  Hendrickson  v.  Bceson,  21  Neb.  61;  Harmer  v.  Bean, 
3  C.  &  K.  307,  accord. 

Compare  Logan  v.  Green,  4' Ired.  Eq.  (N.  C.)  370;  Hughes  v.  Robotham, 
Cro.  Eliz.  302,  post,  p.  371;  Doe  d.  Rawlings  v.  Walker,  5  B.  &  C.  111. 


SECT.    Ill]  LEWIS    V.    BAKER  291 

LEWIS  V.  BAKER 
[1905]  1  Ch.  46.    1904. 

"Witness  Action. 

This  was  an  action  for  wrongful  distress. 

On  June  30,  1902,  the  defendant  Baker  took  an  assignment  of  a 
forty  years'  lease  of  232,  Great  Portland  Street,  the  term  expiring 
on  July  6,  1904. 

By  an  agreement  under  hand  dated  May  6,  1902,  the  reversioner 
in  fee  agreed  to  grant  Baker  a  reversionary  lease  of  the  same  prem- 
ises for  seventy-three  years  from  July  6,  1904,  the  expiration  of 
the  original  lease. 

By  an  agreement  under  hand  dated  October  20,  1903,  Baker  agreed 
to  let  the  premises  to  the  defendant  Haddon  for  twenty-one  years 
from  September  29,  1903,  at  a  rent  of  SOOl.,  and  Haddon  thereupon 
entered  into  possession.  The  agreement  provided  for  the  execution 
of  a  formal  lease  containing  certain  covenants  and  conditions,  and 
also  provided  that  until  the  execution  of  the  lease  the  premises 
should  be  held  by  the  tenant  at  the  rent  aforesaid  and  subject  to 
the  said  covenants  and  conditions.  No  express  right  of  distress 
was  given. 

The  plaintiff  occupied  the  upper  part  of  the  premises  as  tenant 
to  Haddon. 

On  February  19,  1904,  Baker  distrained  the  plaintiff's  goods  for 
57/.  rent  due  from  Haddon  at  Christmas  from  the  time  he  took 
possession. 

The  plaintiff,  who  denied  Baker's  right  to  distrain  on  the  ground 
that  he  had  no  reversion,  claimed  damages  against  the  defendants, 
Baker,  Haddon,  and  the  bailiff,  for  the  wrongful  distress. 

On  a  motion  for  an  interlocutory  injunction  it  was  arranged  that 
the  distress  should  be  withdrawn  on  payment  of  55/.  into  court,  and 
6/.  10s.  the  costs  of  the  levy  to  the  bailiff. 

The  case  against  Haddon  was  abandoned,  and  he  did  not  appear 
at  the  trial. 

Ciir.   adv.   vult. 

SwiNFEN  Eady  J.  (after  stating  the  facts.)  It  was  argued  that 
Baker  had  no  right  of  distress,  as  that  right  depends  on  the  existence 
of  a  reversion  in  the  lessor,  and  Baker  had  no  such  reversion ;  that  the 
demise  to  Haddon  was  for  a  longer  period  than  the  unexpired  residue 
of  the  original  lease,  and,  therefore,  amounted  to  an  assignment 
of  that  term,  and  that  under  the  agreement  of  May  6,  1902,  for  the 
grant  of  a  reversionary  lease.  Baker  had  only  an  interesse  termini 
and  no  estate  in  the  land.  It  was  contended  that  there  was  not 
any  merger  of  the  interests  held  by  Baker. 

Where  a  person  parts  with  all  his  estate  in  land,  as  where  he 
purports  to  demise  for  a  period  co-extensive  with  his  own'  interest,  or 


292  LEWIS    V.    BAKER  [CHAP.    VI 

longer,  the  transaction  is  in  law  an  assignment,  although  purport- 
ing to  be  a  demise;  an  underlease  for  the  whole  of  the  residue  of  a 
term  is  in  law  an  assignment.  In  Brooke's  Abridgment,  tit.  "  Dette," 
pi.  39,  the  following  proposition  is  laid  down :  "  If  a  man  hath  a 
term  for  years,  and  grants  all  his  estate  of  the  term,  rendering 
rent,  he  cannot  distrain." 

In  Parmenter  v.  Webber,  8  Taunt.  593 ;  20  R.  R.  575,  the  defend- 
ant agreed  to  let  two  farms  to  the  plaintiff  during  the  residue  of 
the  defendant's  leases  of  the  same,  the  plaintiff  paying  rent  half- 
yearly,  at  Lady  Day  and  Michaelmas;  the  plaintiff  entered  into 
possession  of  the  farms,  and  paid  rent  for  a  year,  but  the  subsequent, 
rent  being  in  arrear  the  defendant  distrained.  It  was  held  by  the 
Court  of  Common  Pleas  that  the  agreement  between  the  plaintiff 
and  defendant  amounted  in  law  to  an  assignment  of  the  defendant's 
estate,  and,  although  there  was  a  rent  reserved  upon  the  face  of  the 
instrument,  the  defendant  could  not  legally  distrain,  as  there  was  no 
reversion  left  in  him. 

Again,  in  Preece  v.  Corrie,  5  Ring.  24;  30  R.  R.  536,  the  facts 
were  that  Thomas  "White  held  certain  premises  for  the  residue  of  a 
term  of  years  which  would  expire  on  ISTovemher  11,  1826,  and  on 
September  11,  1826,  he  let  the  premises  to  the  plaintiff  to  hold  until 
N'ovember  11,  1826,  rendering  immediately  270/.  for  rent.  This  not 
being  paid,  the  defendant,  as  the  bailiff  of  Thomas  White,  distrained, 
and  the  plaintiff  brought  replevin.  The  Court  of  Common  Pleas 
held  that  the  distress  was  illegal,  White  having  no  reversionary  in- 
terest expectant  on  the  term,  although  an  action  for  debt  or  assump- 
sit for  the  rent  reserved  might  have  been  maintained. 

In  my  opinion  the  defendant  Baker,  having  parted  with  all  his 
estate  in  the  term  created  by  the  original  lease,  had  no  right  to 
distrain.  It  was  contended  that  Haddon,  as  tenant,  was  estopped 
from  disputing  his  landlord's  title,  and  that  the  plaintiff,  being  a 
sub-tenant  of  Haddon,  was  in  the  same  position.  It  is  not,  however, 
a  case  of  disputing  title,  but  of  denying  the  right  of  the  landlord 
to  pursue  the  summary  remedy  by  distress,  and  both  of  the  cases  to 
which  I  have  referred  shew  that  even  as  between  the  two  parties  to 
such  a  transaction  there  is  no  estoppel  precluding  the  lessee  from 
questioning  the  legal  right  to  distrain. 

It  was  further  urged  that,  having  regard  to  the  agreement  to 
grant  the  reversionary  lease  and  to  the  case  of  Walsh  v.  Lonsdale, 
21  Ch.  D.  9,  the  defendant  Baker  must  be  treated  as  having  on  Octo- 
ber 20,  1903,  a  term  of  years  expiring  on  July  6,  1977,  and,  there- 
fore that  he  had  in  fact  the  reversion  expectant  on  the  term  agreed 
to  be  granted  to  Haddon.  This  contention  is  not  well  founded. 
Assuming  that  the  reversionary  lease  had  been  actually  granted,  it 
would  not  have  conveyed  any  estate  to  Baker,  but  he  would  only 
have  had  an  interesse  termini  until  entry  on  or  after  the  date  as  from 
which  he  was  entitled  to  enter  into  possession  under  it.  Smith  v. 
Day,  2  M.  &  W.  684,  46  R.  R.  747,  is  a  clear  authority  on  this 


SECT.   Ill]  LEWIS    V.   BAKER  293 

point.  There  tlio  ground  landlord  had  granted  to  an  undertenant 
a  reversionary  lease  to  connnenec^  as  from  a  future  date,  which  was 
the  date  of  the  expiration  of  the  original  lease,  and  it  was  held  that 
he  still  had  the  reversion  expectant  on  the  original  lease,  and  was 
entitled  to  distrain  for  rent  due  under  it,  and  that  where  a  lease  is 
granted  to  commence  from  a  future  date  the  lessee  has  thereunder  no 
estate  whatever,  which  remains  in  the  lessor,  but  a  mere  interesse 
termini  until  after  entry  under  the  lease  when  the  date  for  its 
commencement  has  arrived.  At  p.  695  Parke  B.  said :  "  The  second 
lease  to  commence  in  future  was  a  mere  interesse  termini.  The  re- 
version continued  in  the  lessor  till  the  determination  of  the  first 
term."  And,  again,  on  p.  699 :  "  The  second  lessee  has  no  interest 
whatever  till  the  determination  of  the  first  lease,  except  a  mere 
interesse  termini.  It  is  clear  that  no  reversion  could  pass  by  that 
deed,  since  it  is  a  mere  interest  in  futuro." 

The  nature  of  an  interesse  termini  was  very  fully  considered  in 
Doe  V.  Walher,  5  B.  &  C.  Ill,  118;  29  R.  R.  184.  It  was  there 
pointed  out  that  such  an  interest  merely  gives  a  right  to  have  the 
possession  at  a  future  time.  It  is  a  right,  not  an  estate.  The 
whole  estate  notwithstanding  that  right  is  in  the  lessor.  The  right 
may  be  granted  away  as  a  right,  or  extinguished  by  a  release,  but  it 
cannot  be  conveyed  as  an  estate.  It  has  all  the  properties  and  con- 
sequences of  a  right  only,  not  of  an  estate.  See  also  Beardman  v. 
Wilson,  L.  R.  4  C.  P.  57;  Hyde  v.  Warden,  3  Ex.  D.  72,  83. 

As  therefore  the  reversionary  lease,  if  granted,  would  not  have 
conveyed  any  estate  to  Baker,  he  cannot  rely  upon  the  agreement  to 
grant  it  as  giving  him  any  reversion.  On  the  expiration  or  sooner 
determination  of  the  original  lease,  the  freeholder  would  have  had 
a  right  of  entry.  This  point  is  well  illustrated  by  the  case  of 
Joyner  v.  Weehu,  [1891]  2  Q.  B.  31,  47.  It  was  an  action  for  breach 
of  a  covenant  by  a  lessee  to  deliver  up  the  demised  premises  in  re- 
pair at  the  expiration  of  the  lease.  Some  two  years  before  the  ex- 
piration of  the  lease,  the  lessors  had  granted  to  a  third  person  a  re- 
versionary lease  of  the  same  premises  at  an  increased  rent,  and  it  was 
urged  that  the  lessors  had  therefore  sustained  no  damage  by  the 
breach  of  covenant.  The  Court  of  Appeal  held  that  the  measure  of 
damages  for  the  breach  was  not  affected  by  the  fact  that  by  reason 
of  the  reversionary  lease  having  been  granted  the  lessor  was  no  worse 
off  at  the  time  of  action  brouglit  than  he  would  have  been  if  the  cove- 
nant had  been  performed.  Fry  L.  J.  said :  "  The  second  lease  passed 
no  estate  until  possession  was  taken  under  it.  It  only  gave  an 
interesse  termini  which  would,  on  possession  being  taken,  become 
an  estate.  The  lessor  had  a  right  of  entry  on  the  determination 
of  the  first  lease.  Directly  that  happened  a  right  of  action  for 
damages  accrued  in  respect  of  the  breach  of  the  covenant  to  yield 
up  in  repair.  Therefore  the  lessor's  right  of  action  for  these 
damages  vested  before  any  estate  vested  in  the  grantee  of  the  sub- 
sequent lease." 


294  ARDS    V.    WATKIN  [CHAP.   VI 

The  defendant  Baker  also  relied  on  s.  44  of  the  Conveyancing  and 
Law  of  Property  Act,  1881;  but  that  does  not  appear  to  me  to  have 
any  application  to  the  present  case.  Upon  these  grounds  I  am  of 
opinion  that  at  the  date  of  the  distress  the  defendant  Baker  had 
not  any  reversion  in  the  premises,  and  therefore  had  not  any  right 
of  distress  as  incident  thereto;  and  I  decide  in  favor  of  the  plaintiff 
that  the  distress  was  illegal.  The  plaintiff  is,  therefore,  entitled  to 
recover  against  the  defendants  Baker  and  the  bailiff,  and  I  assess 
the  damages  at  50/.  The  plaintiff  will  have  the  costs  of  the  action 
against  these  defendants.  Judgment  will  be  in  favor  of  the  defend- 
ant Haddon  but  without  costs,  as  he  did  not  appear  to  ask  for  them. 

The  55/.  in  court  will  be  paid  out  to  the  plaintiff,  but  the  61.  10s. 
paid  to  the  bailiff  will  not  be  repaid,  as  I  have  included  that  in  assess- 
ing the  damages.^ 


ARDS  V.  WATKi:Nr 
Cro.  EHza.  637,  651.    1588,  1599. 

Upon  demurrer  the  case  was,  lessee  for  thirty  years  of  a  parcel 
of  land  called  Shortwood,  lets  it  for  twenty-eight  years,  rendering 
£34  rent  per  annum,  and  after  deviseth  £28  parcel  of  that  rent  to 
his  three  sons,  severally  to  every  of  them  a  third  part.  One  of 
them  brings  debt  for  his  part  of  the  rent :  and,  Whether  this  action 
lay  or  not  ?  was  the  question.  —  It  was  argued  by  Rydgley  for  the 
plaintiff,  and  by  Nichols  for  the  defendant.  Gawdy  and  Fenner 
held,  that  the  action  well  lay;  for  there  is  no  doubt  but  that  rent 
may  be  devised,  and  be  divided  from  the  reversion;  for  it  is  not 
merely  a  thing  in  action,  but  quasi  an  inheritance,  as  Knowles'  Case, 
Dyer,  5  b,  is;  and  in  24  Hen.  8,  Rysdens  Case,  Dyer,  4  b.  If  lessee 
grants  over  all  his  term  in  part  of  the  land,  yet  it  is  chargeable  in  an 
action  with  the  entire  rent;  for  he  by  his  act  cannot  apportion  it. 
And  by  the  grant  of  part  the  lessee  is  not  compellable  to  attorn; 
for  then  he  should  be  liable  to  two  actions,  or  two  distresses.  But 
the  devise  is  quasi  an  act  of  law,  which  shall  inure  without  attorn- 
ment, and  shall  make  a  sufficient  privity,  and  so  it  may  be  well 
apportioned  by  this  means.  Wherefore,  &:c.  —  Popham  and  Clench, 
e  contra.  For  as  the  lessee  by  his  own  act  shall  not  divide  the  lessor's 
contract,  nor  apportion  his  action;  so  likewise  the  law  favors  the 
lessee,  that  the  act  of  the  lessor  shall  not  charge  him  with  divers 
actions,  or  double  distresses,  but  upon  his  voluntary  attornment; 
and  the  contract  being  entire  cannot  be  apportioned.  But  Popham 
agreed,  that  the  rent  was  well  devisable,  and  by  that  means  severable 
from  the  reversion.    And  although  a  thing  in  action  cannot  be  trans- 

1  And  see  Thomas  v.  Whightman,  129  111.  App.  305;  Eelh  v.  Mor.^e,  208 
N.  Y.  103;  Smith  v.  Day,  2  M.  &  W.  684;  Blatchford  v.  Cole,  5  C.  B.  n.  s. 
514.    Compare  Pendergast  v.  Young,  21  N.  H.  234. 


SECT.    Ill]  ■  ARDS    V.    WATKIN  295 

f erred  over,  nor  be  devised;  yet  a  contract,  which  ariseth  from  an 
interest  in  land,  or  which  is  an  interest,  may  be  well  transferred 
over.     Wherefore,  &c.  —  Adjournatur. 

The  case  was  now  moved  again;  and  Gawdy  and  Fenner,  and 
Clench  agreeing  with  them,  held  that  the  devise  was  good,  and  well 
severable;  for  as  to  that  objection,  that  a  mischief  may  hap^^en  to  the 
tenant,  that  he  shall  be  subject  to  two  actions  and  distresses,  that 
is  his  own  fault;  for  if  he  pays  his  rent,  he  shall  avoid  it:  and  the 
same  mischief  is,  where  he  deviseth  part, of  the  reversion  and  rent, 
which  is  agreed  on  the  other  part  to  be  well  enough;  and  although 
a  contract,  or  a  thing  in  action,  cannot  be  transferred  nor  divided, 
yet  rent  only  may  be.  For  it  is  a  thing  in  possession;  for  he  doth 
not  grant  the  action,  but  the  law  gives  it  as  incident  to  the  rent. 
And  Huntley's  Case,  10  Eliz.  Dyer,  326,  is  express,  Avhere  a  devise 
was  of  a  reversion  upon  a  lease  for  years,  with  the  rent,  to  a  man 
and  his  sister,  and  the  heirs  of  their  bodies;  the  sister  dies  without 
issue;  the  brother  dies  having  issue;  the  heir  had  the  moiety  of 
the  rent.  —  Popham  e  contra.  For  the  difference  will  be,  when 
part  of  a  reversion  and  rent  is  granted,  that  is  good;  but  when  the 
rent  is  severed  from  the  reversion,  it  is  otherwise :  for  then  it  is 
but  in  nature  of  an  annuity,  which  cannot  be  granted  by  parcels, 
but  entirely;  but  an  annuity  or  rent  only  are  grantable  over,  because 
they  are  things  of  continuance,  and  are  not  personal.  And  the  reason 
of  Huntley's  Case  is,  because  the  rent  is  divided  with  the  reversion. 
But  notwithstanding,  in  regard  three  of  them  agreed,  he  consented 
that  judgment  should  be  entered  for  the  plaintiff.  —  Note.  That 
in  the  argument  of  this  case,  a  case  was  cited  in  this  court,  Easter 
Term,  28  Eliz.  Roll.  344,  where  a  devise  was  of  an  entire  rever- 
sion and  rent,  which  was  void  for  a  third  part ;  because  it  was  holden 
?«■  capite,  and  debt  was  brought  for  two  parts  of  the  rent,  and  ad- 
judged maintainable.^ 

St.  11  Geo.  II.  c.  19,  §  14.  And  to  obviate  some  difficulties  that 
many  times  occur  in  the  recovery  of  rents,  where  the  demises  are 
not  by  deed,  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  twenty-fourth  day  of  June,  it  shall  and  may 
be  lawful  to  and  for  the  landlord  or  landlords,  where  the  agreement 
is  not  by  deed,  to  recover  a  reasonable  satisfaction  from  the  lands, 
tenements,  or  hereditaments,  held  or  occupied  by  the  defendant  or 
defendants,  in  an  action  on  the  case,  for  the  use  and  oc('U]>ation  of 
what  was  so  held  or  enjoyed ;  and  if  in  evidence  on  the  trial  of  such 
action  any  parol  demise  or  any  agreement  (not  being  by  deed) 
whereon  a  certain  rent  was  reserved  shall  appear,  the  plaintiff  in 

1  See  1  Tiffany,  Landl.  and  Ten.,  pp.  1069.  1127.  whore  actions  by  partial 
assignees  of  the  reversion  and  actions  again.-^t  partial  assignees  of  the  lease- 
hold are  discu.'j.'jrd.  Bancroft  v.  Vizard,  202  Ala.  618;  Rosenberg  v.  Taft,  111 
Atl.  (Vt.)  583,  586. 


296  ARDS    V.    WATKIN  *  [CHAP.   VI 

sucli  action  shall  not  therefore  be  nonsuited,  hut  may  make  use 
thereof  as  an  evidence  of  the  quantum  of  the  damages  to  be 
recovered.^ 

1  "  The  '  difficulties '  here  referred  to  would  seem  to  be  two.  If,  before 
this  statute,  the  plaintiff  counted  upon  a  quantum  meruit,  and  the  evidence 
disclosed  a  demise  for  a  sum  certain,  he  would  be  non-suited  for  a  variance. 
Secondly,  if  he  declared  for  a  sum  certain,  he  must,  as  we  have  seen,  prove 
an  express  promise  at  the  time  of  t^e  demise.  The  statute  accomplished  its 
purpose  in  both  respects.  But  it  is  in  the  removal  of  the  second  of  the 
difficulties  mentioned  that  we  find  its  chief  significance.  Thereby  indebitatus 
assumpsit  became  concurrent  with  debt  upon  all  parol  demises.  In  other 
words,  the  statute  gave  to  the  landlord,  in  1738,  what  Slade's  case  gave  to 
the  seller  of  goods,  the  lender  of  money,  or  the  employee,  in  1602;  namely, 
the  right  to  sue  in  assumpsit  as  well  as  in  debt,  without  proof  of  an  inde- 
pendent express  promise. 

"  The  other  counts  in  indchitatus  assumpsit  being  the  creation  of  the 
courts,  the  judges  found  no  great  difficulty  in  gradually  enlarging  their 
scope,  so  as  to  include  quasj-contracts,  where  the  promise  declared  upon 
was  a  pure  fiction.  Thus,  one  who  took  another's  money,  by  fraud  or  tres- 
pass, was  liable  upon  a  count  for  money  had  and  received.  Thomas  v.  Whip, 
Bull.  N.  P.  130;  Tryon  v.  Baker,  7  Lans.  511,  514;  one  who  wrongfully  com- 
pelled the  plaintiff's  servant  to  labor  for  him,  was  chargeable  in  assumpsit 
for  work  and  labor,  Stockell  v.  Watkiiis,  2  Gill  &  J.  326;  and  one  who  con- 
verted the  plaintiff's  goods,  must  pay  their  value  in  an  action  for  goods  sold 
and  delivered. 

"  But,  indebitatus  assumpsit  for  rent  being  of  statutory  origin,  the  courts 
could  not,  without  too  palpable  a  usurpation,  extend  the  count  to  cases 
not  within  the  act  of  Parliament.  The  statute  was  plainly  confined  to  cases 
where,  by  mutual  agreement,  the  occupier  of  land  was  to  pay  either  a  de- 
fined or  a  reasonable  compensation  to  the  owner.  Hence  the  impossibility 
of  charging  a  trespasser  in  assumpsit  for  use  and  occupation."  Ames, 
Lectures  on  Legal  Histor>%  pp.  170-171.    See  Gibson  v.  Kirk,  1  Q.  B.  850. 

Occasionally  Stat.  11  Geo.  II,  c.  19  §  14  is  regarded  as  in  force  in  this 
country.    Kline  v.  Jacobs,  68  Pa.  57. 

Similar  statutes  have  been  enacted  in  some  states.  See  2  Tiffany,  Landl. 
and  Ten.,  p.  1856. 

In  others  it  has  been  said  that  the  action  for  use  and  occupation  of 
real  estate  exists  independently  of  statute.  Gunn  v.  Scoril,  4  Day  (Conn.) 
228;  Lockivood  v.  Lockwood,  22  Conn.  425;  Crouch  v.  Brilcs,  7  J.  J.  Marsh. 
(Ky.)  255;  Gould  v.  Thompson,  4  Met.  (Mass.)  224;  Dwight  v.  Cutler,  3 
Mich.  566;  Hoggsett  v.  Ellis,  17  Mich.  351;  Eppes  v.  Cole,  4  Hen.  &  M. 
(Va.)   161.     But  see  Long  v.  Bonner,  11  Ired.  Law  (N.  C.)  27. 

As  to  the  liability  for  use  and  occupation  of  a  purchaser  of  land  who 
enters  under  a  contract  before  the  conveyance  is  executed,  see  Carpenter  v. 
United  States,  17  Wall.  (U.  S.)  489;  Gould  v.  Thompson,  4  Met.  (Mass.) 
224;  Winterbottom  v.  Ingham,  7  Q.  B.  611. 

"Assumpsit  for  rent.  No  express  promise  is  shown,  and  the  law  does 
not  imply  one  from  the  facts.  The  defendant  was  tenant  of  the  plaintiff's 
father.  He  died,  and  the  tenant  denies  the  title  of  the  plaintiff,  who  claims 
to  hold  as  heir.  As  to  him,  the  tenant  has  become  a  disseizor.  There  was 
no  relation  of  landlord  and  tenant  between  them  from  which  the  law  implies 
assumpsit  for  rent  or  use  and  occupation.  Rogers  v.  Libhey,  35  Maine,  200; 
Howe  V.  Fu-ssell,  41  Maine,  446;  Emery  v.  Emery,  87  Maine.  281.  Title  to 
land  should  not  be  tried  in  assumpsit "  —  Opinion  of  the  Court  in  Burdin 
v.  Ordway,  88  Me.  374. 

That  a  trespasser  to  real  estate  is  not  liable  in  assumpsit  for  use  and 


SECT.   Ill]  NEWMAN    V.    ANDERTON  297 

NEWMAN  V.  ANDERTON 
2  B.  &  P.  N.  S.  224.    1806. 

Replevin.  The  plaintiff  in  his  declaration  complained  that  the 
defendant  took  certain  goods  and  chattels  of  the  plaintiff  in  a  bed- 
room and  shop,  and  unjustly  detained  them,  against  sureties  and 
pledges.  The  defendant  avowed  the  taking  in  the  bedroom,  because 
"  the  plaintiff,  for  the  space  of  sixteen  weeks  and  more  next  before, 
aijd  ending,  ^c,  enjoyed  the  said  bedroom  in  which,  &c.,  together 
with  a  certain  other  room  and  apartment,  also  being  in  and  part 
and  parcel  of  the  said  dwelling-house  in  the  declaration  mentioned, 
with  certain  furniture  and  effects  with  which  the  said  bedroom  in 
which,  &c.,  and  the  other  said  room  and  apartment,  with  the  appur- 
tenants, were  furnished  under  a  demise  thereof  theretofore  made 
by  the  defendant  to  the  plaintiff,  at  the  weekly  rent  of  13s.  of  lawful 
money  of  Great  Britain  payable  weekly  on  the  Thursday  in  every 
week,  and  during  all  that  time  held  the  same  of  the  defendant  by 
virtue  of  the  said  demise,  as  his  tenant  thereof."  And  because  £12 
were  in  arrear,  avowed  the  taking  and  prayed  a  return. 

The  plaintiff  took  judgment  for  so  much  as  related  to  the  shop; 
and  as  to  the  avowry,  pleaded  that  he  did  not  hold  the  said  bedroom 
together  with  the  said  other  room  and  apartment  in  the  said  declara- 
tion mentioned,  and  certain  furniture  and  effects  with  which  the 
said  other  room  and  apartment  were  furnished  under  a  demise  there- 
of theretofore  made  by  the  defendant  to  the  plaintiff,  at  the  weekly 
rent  of  13s.  payable  on  the  Thursday  in  every  week  in  manner 
and  form,  &c. 

On  this  plea  issue  was  joined. 

At  the  trial  before  Sir  James  Mansfield,  C  J.,  at  the  Westminster 
Sittings  after  last  Hilary  Term,  a  verdict  was  found  for  the  de- 
fendant. 

A  rule  having  been  obtained,  calling  upon  the  defendant  to  show 
cause  why  this  verdict  should  not  be  set  aside,  upon  the  ground  that 
the  defendant  could  not  be  entitled  to  distrain  for  the  rent  of  ready 
furnished  lodgings. 

Sir  James  Maxspielh,  C  J.  Cases  like  this  must  have  very 
often  occurred,  and  yet  it  does  not  appear  that  the  right  of  distress 
has  ever  before  been  called  in  question.  The  difficulty  of  the  case 
consists  in  this,  that  in  London  and  other  towns  it  scarcely  ever 
happens  that  any  house  is  let  without  some  goods  being  let  with  it. 


occupation,  ser  Lluyd  v.  Ilnugh,  1  How.  (U.  S.).  153.  159;  Hurley  v. 
Lamoureaux.  29  Minn.  138;  Cnthrnrt  v.  Malthm.-i.  105  S.  C.  329.  Compare 
Watson  V.  United  States.  263  F.  R.  700;  Jonrs  v.  DonmUy.  231  Mass.  213: 
Cavanaugh  v.  Cook.  38  R.  I.  25;  Roukou.'^  v.  DrOraft.  99  Atl.  (R.  I.)  821; 
Phillips  v.  Homfray,  24  Ch.  D.  439;  23  Central  L.  J.  387. 


298  NEWTON    V.    SPEARE   LAUNDERING    CO.         [CHAP.   VI 

and  yet  one  rent  is  always  reserved.  In  the  case  of  a  brewhoiise  it 
is  common  to  let  the  utensils  with  it,  and  yet  I  never  heard  it 
doubted  that  the  landlord  might  distrain  for  rent.  Whether  the 
goods  be  worth  five  shillings  or  five  hundred  pounds,  the  case  must 
be  the  same.  We  will  inquire  into  the  matter,  and  give  our  opinion 
in  a  few  days.  Cur.  adv.  vult. 

On  this  day  Sir  James  Mansfield,  C.  J.,  said:  Upon  this  ques- 
tion no  authorities  have  been  cited  either  on  the  one  side,  or  the  other. 
But  it  must  occur  constantly  that  the  value  of  demised  premises 
is  increased  by  the  goods  upon  the  premises,  and  yet  the  rent  re- 
served still  continues  to  issue  out  of  the  house  or  land,  and  not 
out  of  the  goods;  for  rent  cannot  issue  out  of  goods.  In  Spencer's 
Case,  5  Co.  17,  it  is  resolved  that  if  a  man  lease  sheep  or  other 
stock  of  cattle, 'or  any  other  personal  goods,  for  any  time,  and  the 
lessee  covenants  for  him  and  his  assigns  at  the  end  of  the  time  to 
deliver  the  like  cattle  or  goods  as  good  as  the  things  letten  were, 
or  such  price  for  them,  and  the  lessee  assigns  the  sheep  over,  this 
covenant  shall  not  bind  the  assignee;  for  it  is  but  a  personal  con- 
tract ;  and  it  is  added  "  the  same  law,  if  a  man  demises  a  house 
and  land  for  years  with  a  stock  or  sum  of  money,  rendering  rent, 
and  the  lessee  covenants  for  him,  his  executors,  administrators,  and 
assigns,  to  deliver  the  stock  or  sum  of  money  at  the  end  of  the  term, 
yet  the  assignee  shall  not  be  charged  with  this  covenant,  for  al- 
though the  rent  reserved  was  increased  in  respect  of  the  stock  or 
sum,  yet  the  rent  did  not  issue  out  of  the  stock  or  sum,  but  out  of 
the  land  only."  The  material  words  in  that  resolution  ai'e  those 
which  declare  that  where  land  is  leased  with  stock  upon  it,  the  rent 
still  continues  to  issue  out  of  the  land  only.  In  that  case,  therefore, 
as  well  as  any  other,  the  person  to  whom  the  rent  is  due  may  dis- 
train for  the  same;  and  consequently  the  landlord  here,  who  was  not 
paid  his  rent,  has  pursued  his  legal  remedy  of  distress,  though  the 
rent  issued  out  of  ready  furnished  lodgings.          ,  Rule  discharged.^ 


NEWTON  V.  SPEARE  LAUNDERING  CO. 
19  R.  I.  546.    1896. 

Defendants'  petition  for  a  new  trial. 

Stiness,  J.  The  defendants  hired  of  the  Newport  Laundry  Co. 
a  laundry  plant,  comprising  both  real  and  personal  estate.  May 
14,  1894,  at  $125  a  month.     TJie  testimony  shows  that  a  lease  \yas 

1  Armstrong  v.  Cummings,  58  How.  Pr.  (N.  Y.)  331 ;  Stein  v.  SteJy,  32 
S.  W.  (Tex.  Civ.  App.)  782;  Fareivell  v.  Dickenson,  6  B.  &  C.  251.  accord. 
See  Lathrop  v.  Cleiris,  63  Ga.  282;  Mickle  v.  Miles,  31  Pa.  20;  ¥6116/8 
Appeal,  99  Pa.  52.    Compare  Emott  v.  Cole,  Cro.  Eliz.  255. 


SECT.    Ill]         NEWTON    V.    SPEARE   LAUNDERING   CO.  299 

talked  about  and  drawn  np,  but  it  was  not  signed  by  all  of  the 
lessors  nor  by  the  defendants,  and  the  only  defendant  who  testified 
denied  that  it  Avas  agreed  to.  The  judge  who  tried  the  case  treated 
the  hiring  as  one  from  month  to  month,  and  we  think  he  was 
correct. 

The  real  estate  was  subject  to  a  mortgage,  under  which  it  was 
sold  at  auction  September  8,  1894;  and  the  plaintiff,  being  the  pur- 
chaser, brings  this  action  to  recover  the  rent  due  from  September 
14,  1894,  to  May  14,  1895,  the  time  when  he  took  possession  of  the 
property.  Upon  these  facts  the  judge  directed  a  verdict  for  the 
plaintiff  for  the  amount  claimed,  and  the  defendants  ask  for  a  new 
trial  upon  exceptions  to  such  ruling.  We  think  that  the  direction 
was  erroneous. 

The  defendants'  agreement  to  pay  $125  per  month  was  for  the 
use  of  the  real  estate,  together  with  the  machinery  and  other  per- 
sonal property  needed  in  the  business.  The  testimony  does  not  show 
an  attornment  by  them  to  the  plaintiff,  nor  an  agreement  with  him 
as  to  the  amount  which  he  should  receive  for  the  real  estate  alone. 
According  to  the  record  and  the  ruling  of  the  judge,  the  personal 
property  remained  the  property  of  the  Newport  Laundry  Co.  after 
the  foreclosure  of  the  mortgage.  Taking  the  case  as  it  is  presented, 
the  most  that  the  plaintiff  can  demand  is  what  the  use  of  the  real 
estate  was  worth,  distinct  from  what  the  use  of  the  machinery  was 
worth.  The  previous  agreement,  as  an  entirety,  came  to  an  end 
when  the  mortgage  was  foreclosed.  It  is  for  the  jury  to  assess  this 
sum  according  to  the  proof,  as  in  ordinary  cases,  for  use  and  occupa- 
tion. Buffum  V.  Deane,  4  Gray,  385.  The  ruling  of  the  court  seenns 
to  have  rested  upon  two  points:  First,  that  the  defendants  had 
acknowledged  that  they  were  liable  at  the  rate  of  $125  per  month; 
and,  second,  that  if  Mr.  Horgan,  one  of  the  original  lessors,  sat 
by  and  saw  the  plaintiff  claim  the  rent,  he  could  not  collect  it 
again. 

As  to  the  first  point,  it  appears  that  the  plaintiff  did  so  state; 
but  from  his  whole  testimony  it  is  clear  that  he  meant  only  to  say 
that  they  admitted  that  the  rent  was  so  much  per  month,  but 
denied  that  they  were  liable  to  him,  and  some  of  these  statements 
were  in  the  course  of  an  attempt  to  compromise.  An  admission 
that  the  rent  was  originally  $125  per  month  is  not  an  admission 
that  the  defendants  wore  liable  to  the  plaintiff  for  that  sum  for  the 
real  estate  alone. 

As  to  the  second  point,  whether  the  original  lessors  would  be 
estopped  or  not  by  the  plaintiff's  recovery  of  the  full  amount  then 
agreed  upon,  it  is  also  clear  that  the  plaintiff  had  no  right,  against 
the  objection  of  the  defendants,  to  recover  more  than  the  use  of  the 
land  was  worth,  and  that  tliev  had  the  right  to  have  his  judgment 
limited  to  that  sum.  Tbe  assessment  of  the  plaintiff's  claim  slionld 
have  been  left  to  the  jury,  and  therefore  a  new  trial  must  be 
granted. 


300  PAXTON   V.    KENNEDY  [CHAP.   VI 

Another  question  is  made,  whieh  should  be  disposed  of  for  the 
purposes  of  another  trial.  The  defendants  claim  to  have  aban- 
doned the  property  February  14,  1895;  to  have  sent  the  key  to  the 
plaintiff,  and  that  they  are  not  liable  for  the  rent  after  that  time. 
The  plaintiff  admits  that  the  key  was  sent  to  his  office,  but  he 
denies  that  he  took  any  possession  of  the  property  until  May  14,  1895. 
The  judge  correctly  ruled  that,  if  the  defendants  were  tenants  from 
month  to  month,  they  were  liable  for  the  rent  until  they  terminated 
the  tenancy  by  proper  notice,  or  until  a  surrender  and  acceptance 
of  the  premises  by  the  owner.  Sending  a  key  to  the  owner,  without 
m.ore,  is  not  such  a  surrender  and  acceptance  as  will  discharge  a 
tenant's  liability  for  rent.  Townsend  v.  Albers,  3  E.  D.  Smith 
(K  Y.)  560;  Withers  v.  Larrabee,  48  Me.  570;  Pier  v.  Carr,  69  Pa. 
St.  326.^ 


PAXTOTi  V.  KENNEDY 

70  Miss.  865.     1893. 

Cooper,  J.,^  delivered  the  opinion  of  the  court. 

The  appellee,  being  indebted  to  appellant  several  hundred  dol- 
lars, leased  from  him  for  a  term  of  years  a  tract  of  land,  at  a  fixed 
rent  of  one  hundred  dollars  per  annum,  and,  at  the  same  time  and 
by  the  same  writing,  promised  to  pay  to  appellant,  in  five  equal 
annual  payments,  the  sum  of  his  past  indebtedness  as  rent,  and 
also  agreed  to  execute  his  notes  for  the  agreed  rent  and  for  the  ante- 
cedent debt,  the  exact  amount  of  which  was  not  then  known,  by  which 
notes  the  said  debt  was  to  be  stipulated  to  be  paid  as  rent.  The 
appellee  was  let  into  possession  of  the  leased  premises,  but  refused 
to  execute  the  notes  stipulated  for  in  his  contract.  The  appellant 
sued  out  an  attachment  for  rent,  including  in  his  demand  the  sum  of 
one  hundred  dollars,  and  also  one-fifth  of  the  sum  of  the  antecedent 
debt.  The  tenant  brought  replevin  for  the  property  seized,  and 
the  landlord  avowed,  justifying  the  distress.  On  the  trial,  the 
appellant  offered  to  prove  that  at  the  expiration  of  the  first  year 
the  appellee  paid,  under  his  contract  and  according  to  its  terms,  both 

1  Part   of   the    case   is   omitted. 

Buffum  v.  Deane,  4  Gray  (Mass.)  385;  Salmon  v.  Matthews.  8  M.  <^-  W. 
827,  accord.  Fay  v.  Holloran,  35  Barb.  (N.  Y.)  295,  contra.  See  Whitaker 
V.  Hawley,  25  Kan.  674;  Newton  v.  WiUon,  3  Hen.  &  M.  (Va.)  470; 
Le  Tavener's  Ca.se,  Dyer  56  a;  Read  v.  Laumae,  Dyer  212  b.  Compare 
Jordan  v.  Indianapolis  Water  Co.,  159  Ind.  337;  Jones  v.  Smith,  14  Ohio  606. 

As  to  whether  rent  issues  out  of  licenses  or  easements,  see  Buszard  v. 
Capel,  8  B.  &  C.  141;  Williams  v.  Hayivard,  1  E.  &  E.  1040;  Hancock  v. 
Austin,  14  C.  B.  N.  S.  634;  Selhy  v.  Graves.  L.  R.  3  C.  P.  594.  Compare 
McMorran  Milling  Co.  v.  Little  Co.,  201   Mich.  301. 

2  Only  the  opinion  is  given. 


SECT.    Ill]  HOBY    V.    ROEBUCK   AND   PALMER  301 

the  sum  of  one  hundred  dollars  and  one-fifth  of  the  antecedent  debt, 
which  evidence,  upon  objection  of  the  plaintiff,  was  excluded. 
Verdict  was  had  and  judgment  rendered  for  the  landlord  for  the 
fixed  sum  of  one  hundred  dollars,  from  which  he  appeals  and  in- 
sists upon  his  right  to  recover  by  distress  the  aliquot  of  the  ante- 
cedent debt,  according  to  the  contract  of  lease. 

The  claim  of  appellant  cannot  be  maintained.  The  right  and 
the  remedy  of  the  landlord  are  established  and  fixed  by  the  law, 
and  rest  upon  the  existence  of  the  relation  of  landlord  and  tenant, 
and  it  is  essential  that  the  demand  of  the  landlord  shall  be  for 
the  rent  of  the  land.  The  agreement  of  the  tenant  to  pay  an 
antecedent  debt  as  rent  does  not  and  cannot  change  its  nature 
or  bring  it  within  the  protection  of  the  statute.  A  past-due  debt 
is  not  rent,  and  calling  it  such,  or  agreeing  that  it  shall  be  .so 
treated  and  considered,  cannot  entitle  the  creditor  to  resort  to  the 
summary  remedy  for  its  collection.  The  contract  of  the  debtor 
is  but  an  ordinary  promise  to  pay,  and  for  its  breach  the  creditor 
must  resort  to  the  usual  remedies.  Juchjmcnt  affirmed.^ 


HOBY  V.   EOEBUCK  AND  PALMEK 

7  Taunt.  157.     1816. 

Thls  was  an  action  of  assumpsit.  Upon  the  trial  of  the  cause 
before  Gibhs  C.  J.  at  the  sittings  after  Trinity  term,  1816,  it  appeared 
that  the  Plaintiff  had  leased  for  twenty-one  years  to  Roebuck,  who 
afterwards  took  Palmer  into  partnership  in  his  trade,  for  the  pur- 
poses of  which  the  demised  premises  were  used,  but  Avere  not 
sufficiently  large;  Avherefore  the  Defendants  jointly  agreed  by 
parol  with  the  Plaintiff,  that  if  he  would  erect  an  additional  story 
over  the  house,  they  would  pay  him,  during  the  residue  of  the  demised 
term,  besides  the  former  rent,  10  per  cent,  on  the  cost.  The  build- 
ing was  erected,  and  after  they  had  paid  the  increased  rent  for  some 
years,  Palmer,  before  the  debt  accrued  for  which  this  action  was 
brought,  quitted  the  partnor.ship  and  the  premises.  Lens  and 
Vaiif/han  Serjts.  contended  that  Palmer  was  not  liable  in  this 
action,  for  that  this  contract  for  an  additional  rent  was  a  demise  of 
the  new  biiildings,  and  ought,  according  to  the  statute  of  frauds, 
to  have  been  in  writing.  Gihhs  C.  J.  thought  otherwise,  for  that 
Avhat.soever  was  built,  instantly  became  parcel  of  the  premi.ses  already 
demised;  and  that  this  Avas  a  collateral  contract,  to  Avhich  Palmer, 
no  less  than  Koebuck,  was  chargeable  during  the  residue  of  the  term ; 
and  the  jury  found  a  verdict  for  the  Plaintiff. 

1  See  First  Bank  v.  Flynn.  117  Iowa  493;  Miners'  Bank  v.  Hcilncr,  47  Pa. 
452;  Smith  v.  Maplcback,  1  T.  R.  441. 


302  HOBY    V.    ROEBUCK   AND   PALMER  [CHAP.   VI 

Vauyhan  now  moved  for  a  new  trial :  he  urged  that  the  increased 
payment  might  be  recovered  by  distress  on  the  premises,  as  rent; 
Palmer's  interest,  in  respect  of  which  he  was  liable,  was  only  co- 
extensive with  his  partnership  with  Roebuck. 

The  Court  held,  that  the  original  lease  still  existed:  the  new 
contract  was,  therefore,  no  demise  of  the  premises.  Only  the 
original  rent  could  be  distrained  for,  and  this  was  merely  a  collateral 
agreement  to  pay  so  much  more  money  during  the  residue  of  the  term, 
if  the  lessor  would  make  the  desired  expenditure. 

Rule  refused} 

1  Donellan  v.  Read,  3  B.  &  Ad.  899,  accord. 

"  Distress  is  a  remedy  that  can  be  employed  only  for  the  recovery  of 
what  is  properly  rent  and  is  reserved  as  such.  It  may  be  sustained  where 
the  sum  originally  stipulated  for  has  been  increased  by  agreement,  as  in 
Brisben  v.  Wilson,  60  Pa.  452,  where  the  tenant  agreed  to  pay  the  additional 
sum  in  consideration  of  the  landlord's  acceptance  of  the  surrender  of  the 
lease;  or  where  the  lease  provides  for  an  increase  if  improvements  are  made 
to  the  property  demised,  as  in  Detwiler  v.  Cox,  75  Pa.  200;  or  where  the 
lessee  agrees  to  pay  a  fixed  sum  for  gas  furnished  by  the  landlord  and  used 
on  the  premises,  as  in  Fernwood  Masonic  Hall  Assn.  v.  Jones,  102  Pa.  307. 
In  these  cases  the  additional  payments  were  to  be  made  to  the  lessor  as  rent, 
and  were  certain  in  amount  or  certain  in  the  sense  that  they  could  be  made 
certain.  Id  certum  est  quod  cerium  reddi  potest.  But  covenants  that  re- 
late to  the  use  of  the  premises,  but  not  to  the  payment  to  the  lessor  for 
the  use,  do  not  give  the  right  to  distrain.  In  Latimer  v.  Groctzinger,  139 
Pa.  207,  it  was  held  that  a  covenant  not  to  engage  in  another  business  on  the 
premises  under  penalty  to  be  paid  in  the  n&ture  of  rent  in  monthly  in- 
stallments was  a  mere  personal  covenant  for  the  payment,  not  of  rent  but 
of  a  penalty,  and  that  the  incident  of  distress  did  not  attach  to  it.  Fern- 
wood  Masonic  Hall  Assn.  v.  Jones,  supra,  relied  on  by  the  appellant,  is  not 
an  authority  in  his  favour.  In  that  case  the  gas  to  be  paid  for  by  the 
tenant  was  manufactured  on  the  premises  and  furnished  by  the  lessor, 
and  the  payment  was  to  be  made  to  him.  This  appears  in  the  report  of 
the  case  and  more  fully  in  the  paper-books.  We  do  not  decide  that  the 
rent  might  not  be  resen-ed  in  such  a  manner  as  to  include  the  water  rent 
and  give  the  right  to  distrain  for  it.  But  in  this  case  there  was  no  such 
stipulation.  Standing  alone  a  covenant  to  pay  water  rent  is  a  covenant  to 
pay  to  the  party  entitled,  in  this  case  the  municipality,  and  it  cannot  be 
enforced  by  distress."  —  Per  Fell,  J.,  in  Evans  v.  Lincoln  Co.,  204  Pa.  448, 
452. 

"  It  will  appear  from  an  examination  of  the  decisions  of  the  Supreme 
Court  of  Pennsylvania,  that  definite  sums,  or  sums  capable  of  being  made 
definite,  chargeable  on  the  demised  premises  by  way  of  taxes,  or  for  gas  and 
water,  or  for  improvements  and  betterments  and  such  like,  will  be  con- 
sidered as  rent  or  included  therein  when  the  intention  to  so  consider  them 
is  made  clear  in  the  contract  between  the  lessor  and  lessee.  Sums  thus 
made  part  of  the  rent  may  be  distrained  for  by  the  landlord  and  are  en- 
titled to  the  preference  given  by  the  laws  of  Pennsylvania  to  rent  for  one 
year  over  liens  by  execution  or  otherwise.  Morgans  Estate,  30  Wkly.  Notes- 
Cas.  (Pa.)  509;  Deticiler  v.  Cox,  et  al.,  75  Pa.  200;  Fernwood  Masonic  Hall 
Ass'n  V.  Jones,  102  Pa.  307;  Erans  v.  Lincoln,  204  Pa.  448,  54  Atl.  321; 
Latimer  v.  Groetzinger  et  al,  139  Pa.  207,  21  Atl.  22. 

"  In  some  of  the  cases  it  was  held  that  the  sums  claimed  as  rent  had 
not  been  clearly  reserved  as  such  by  the  contract  between  the  parties,  and 


SECT.    Ill]  MARSHALL    V.    MOSELEY  303 

B.     Apportionment,    Suspension,    and   Extinguishment 

M.VK«11ALL  ET  XL.  v.  MOSELEY 
21  N.  Y.  280.     1860. 

CoMSTOCK,  Ch.  J.^  Mrs.  Coe,  by  virtue  of  her  husband's  will 
had  a  life  estate  in  the  premises,  out  of  which  the  rents  in  ques- 
tion accrued,  and  the  plaintiffs  owned'  the  remainder  in  fee.  She 
died  April  5,  1855,  the  leases  being  then  unexpired.^  On  the  1st 
of  May  following,  the  rents  became  due  for  the  preceding  quarter 
of  a  year.  The  defendant  is  the  executor  and  residuary  legatee 
of  Mrs.  Coe,  and  having  collected  the  rents,  for  the  whole  quarter, 
the  principal  question  in  the  case  is,  whether  he  is  entitled  to 
apportion  them  by  dividing  the  quarter  into  two  periods  of  time, 
one  before  and  the  other  after  her  death,  and  by  retaining  in  his 
own  hands  the  portion  which  accrued  before  that  event. 

As  rent  follows  the  reversionary  estate,  the  law  allows  it  to  be 
apportioned  where  that  estate  becomes  divided  amongst  different 
owners.  This  is  according  to  the  maxim,  "  accessorium  sequitur 
natwram  sui  principalis."  Thus  if  a  reversion  descend  on  the 
death  of  the  ancestor  who  gave  the  lease,  and  the  coparceners  or 
heirs  make  a  partition,  the  rent  will  be  apportioned  in  favor  of 
each  of  them.  So  if  the  reversion  be  severed  by  will  or  even  by 
conveyance  of  the  owner,  the  same  result  will  take  place.  (2  Piatt 
on  Leases,  131,  132,  and  cases  cited.)  But  the  same  reasons  never 
existed  for  apportioning  rent  on  the  principle  of  time  where  the 
tenant  was  bound  to  pay  it  at  stated  periods.  The  sum  accruing 
between  each  of  the  times  of  payment  was  a  single  entire  debt,  and 
was  due  only  on  the  condition  precedent  of  the  tenant  being  en- 
titled to  enjoy  the  premises  for  the  time  in  respect  to  which  it  was 
payable.  If,  therefore,  a  person  having  a  life  estate,  with  no 
power  to  make  a  lease  to  continue  longer  than  during  his  life,  should 
make  a  lease  for  years  reserving  rent  half  yearly,  and  should  die 
in  the  middle  of  a  half  year,  the  rent,  according  to  the  principles 


the  distinction  is  drawn  between  mere  personal  covenants  on  the  part 
of  the  lessee  to  pay  certain  sums  and  a  reservation  of  the  same  by  the 
lessor  as  rent.  In  none  of  them,  however,  is  it  decided  that  the  rent 
might  not  be  reserved  in  such  a  manner  as  to  include  such  smns  as  are 
above  de.scribed."  —  Per  Gray,  J.,  in  McCann  v.  Evans,  185  F.  R.  93,  95. 

An  agreement  to  pay  taxes  was  held  an  agreement  to  pay  rent  in  Neagle 
V.  Kelly,  146  111.  460;  Gedge  v.  Shoenherger,  83  Ky.  91;  Roberts  v.  Sims, 
64  Miss.  597;  Knight  v.  Orchard,  92  Mo.  App.  466.  But  not  in  Ffndgkins 
V.  Prioe,  137  Mass.  13;  People  v.  Swayze,  15  Abb.  Pr.  (N.  Y.)  432.  See 
Garner  v.  Hannah,  6  Ducr  (N.  Y.)  262.  266;  L.  R.  A.  1915  A.  355  note. 

^  Tho  statement  of  facts,  part  of  the  opinion,  and  the  dissenting  opinion 
of  Ci>E[{KE,  J.,  are  omitted. 

-  These  leases  were  created  by  the  testator  under  whose  will  Mrs.  Coe 
and  the  plaintifYs  claimed. 


304  MARSHALL   V.    MOSELEY  [CHAP.   VI 

of  the  common  law,  would  be  lost  for  the  half  of  a  year.  The  ex- 
ecutor or  representative  of  the  lessor  could  not  recover  it  because 
by  the  nature  of  the  contract  the  lessor  was  not  entitled  to  it 
except  in  the  sums  and  at  the  times  specified  in  the  lease.  His 
successor  in  the  reversionary  estate  could  not  claim  it  for  the  addi- 
tional reason  that  the  reversion  was  not  his  until  the  lease  itself 
was  terminated  by  the  death  of  the  life  tenant  who  gave  it.  If 
the  lessee  continues  to  hold  afterwards,  such  holding  is  necessarily 
under  some  new  contract  with  the  party  on  whom  the  estate  has 
devolved.  (Woodf all's  Land,  and  Ten.,  248 ;  1  Salk.,  65 ;  1  P.  Wm., 
392;  2  Id.,  501,  502;  1  Man.  &  Gr.,  589,  13  N.  H.,  343;  11 
Mass.,  493.) 

If,  however,  the  lease  continues,  although  intermediate  the  days 
of  payment  the  reversion  passes  wholly  into  new  hands,  the  obliga- 
tion of  the  lessee  to  pay  rent  continues  also.  Thus  in  the  middle  of 
a  quarter  the  lessor  may  convey  the  whole  estate  which  is  under 
the  lease,  or  it  may  be  sold  under  execution  or  mortgage,  or  he  may 
die  leaving  it  to  descend  to  his  heirs,  or  he  may  dispose  of  it  by 
will.  The  lease  itself  is  unaffected  by  these  events,  and  the  rent 
is  therefore  payable  as  though  they  did  not  occur;  but  it  is  pay- 
able only  in  the  sums  and  at  times  specified  in  the  demise.  The 
reversion  may  be  transmitted  to  a  new  owner  during  a  period  be- 
tween the  days  of  payment,  but  such  an  event  does  not  divide  the 
obligation  of  the  tenant.  The  accruing  rent  follows  the  reversion 
wheresoever  that  goes,  and  neither  the  former  owner  nor  his  repre- 
sentative can  recover  any  portion  of  it.  Being  recoverable  only  in 
a  single  sum  and  not  until  the  prescribed  day  of  payment,  the 
common  law  gives  it  to  him  who  is  the  reversioner  at  that  time,  and 
no  case  can  be  found  where  a  court  of  equity  has  adopted  a  different 
rule.  Says  Mr.  Woodf  all  (Law  of  Landlord  and  Tenant,  248),  "at 
common  law  rent  cannot  be  apportioned,  but  the  reversioner  becomes 
entitled  to  the  accruing  rent  from  the  rent  day  antecedent  to  the 
decease  of  the  tenant  for  life,  whose  representative  was  entitled  to 
the  arrearages  due  at  some  rent  day  before  the  de'ath  of  the 
testator,  or  the  intestate;  for  the  law  does  not  apportion  rent  in 
point  of  time  nor  does  equity."  (See  also  2  Greenleaf's  Cruise,  p. 
116,  §§  44,  45,  46,  Ex  parte  Smith,  1  Swanst.,  337,  and  note,  and 
other  cases  cited,  supra.)  It  is  true  there  are  in  the  English 
books  some  cases  of  a  peculiar  kind,  where  on  the  death  of  a  tenant 
for  life  before  the  day  of  paying  rent  for  the  current  quarter  or 
other  period,  the  rent  has  been  divided  between  his  representative 
and  the  remainderman;  but  these  are  all  cases  in  which  the  lease 
terminated  on  the  decease  of  the  life  tenant;  either  because  he  had 
no  power  to  lease  so  as  to  affect  the  remainderman,  or  because 
if  such  a  power  was  given  to  him  it  had  been  defectively  executed, 
and  the  lessee,  holding  the  premises  until  the  rent  day,  voluntarily 
paid  the  whole  to  the  person  who  succeeded  to  the  estate.     In  all 


SECT.    Ill]  MARSHALL    V.    MOSELEY  305 

the  cases  of  this  kind  the  lessee  was  not  at  common  law  bound  to 
pay  at  all  for  so  much  of  the  time  since  the  last  rent  day,  as  had 
elapsed  before  the  (h'ath  of  tlie  tenant  for  life,  but  having  con- 
scientiously paid  for  the  whole  time,  the  person  who  took  the  estate 
in  remainder  Avas  held  by  the  courts  of  equity  to  have  received  for 
the  use  of  the  executor,  or  his  life  tenant,  so  much  of  the  rent  as 
accrued  beyond  his  decease.  (Ex  'parte,  Smyth,  supra;  Paget  v. 
Gee,  1  Ambler,  199.)  In  these  instances  the  rent  actually  paid 
was  apportioned  or  divided  on  the  principle  of  time;  but  cases  of 
this  kind  have  no  tendency  to  show  that  such  an  apportionment  can 
be  made  when  the  lease  remains  as  before,  notwithstanding  a  change 
of  parties  entitled  to  the  rents  takes  place  intermediate  the  rent 
days.  The  lessee  in  that  case  is  bound  to  pay  for  the  whole  time, 
and  the  reversioner,  or  remainderman,  takes  the  rent  as  an  entire 
sum  due  to  him  by  the  term's  of  the  contract. 

The  well  ascertained  rules  of  the  common  law  are,  therefore, 
opposed  to  the  claim  of  the  defendant  to  retain  any  portion  of  the 
rents  received  by  him  for  the  quarter  during  which  his  testator, 
the  life  tenant,  died.  The  leases  were  not  determined  by  that  event, 
and  the  plaintiffs,  who  as  remaindermen  succeeded  to  the  reversion, 
were  entitled  to  the  whole  of  those  rents.  It  has  also  been  observed 
that  the  courts  of  equity  have  never  departed  from  the  rule  of  law 
on  this  subject. 

It  seems  hardly  necessary  to  say  now  that  there  is  no  legislation 
of  this  State  which  the  defendant  can  invoke  in  support  of  his  claim. 
In  England,  one  of  the  rules  of  law  in  regard  to  apportionment 
of  rent  was  abrogated  by  an  act  of  Parliament,  passed  in  the 
reign  of  George  II.  That  statute  (2  Geo.  II,  c.  19),  after  notic- 
ing that  by  the  existing  rule  rents  were  frequently  lost,  where  a 
lessor  having  only  a  life  estate  died  before  or  on  the  day  when  it 
would  be  payable,  declared  that  when  any  tenant  for  life  should 
happen  so  to  die,  his  executor  or  administrator  might  recover  the 
whole  rent  in  arrear,  in  case  such  death  took  place  on  the  day  fixed 
for  payment,  or  if  it  happened  before  that  day,  then  a  proportion, 
according  to  time,  making  all  just  allowances,  S:c.  That  legislation, 
with  some  change  in  phraseology,  has  been  followed  in  this  State. ^ 
Our  statute  (1  R.  L.,  438;  1  R.'  S.,  747,  §  22)  provides  that  when 
a  tenant  for  life,  who  shall  have  demised  lands,  shall  die  before  the 
day  when  any  rent  is  to  become  due,  his  executors  may  recover 
"  the  proportion  of  rent  which  accrued  before  his  death."  In  the 
case  provided  for,  therefore,  rent  can  be  apportioned  in  opposi- 
tion to  the  rule  of  the  common  law,  and  a  recovery  had,  where, 
but  for  the  statute,  the  rent  would  be  lost.  But  the  statute  does 
not  include  the  present  case.  The  leases  in  question  were  not 
given  by  a   tenant  for  life,  but   by  the  owner  of  the  fee,   and   tlic 

1  See   New  York.   Civil    Code    of   Procedure    (1920).    §    2674;    Matter  of 
Weeks,  5  Dem.  (N.  Y.)  194;  Miller  v.  Crawjord,  26  Abb.  N.  C.  (N.  Y.)  376. 


306  MARSHALL    V.    MOSELEY  [CHAP.   VI 

disputed  rent  was  not  liable  to  be  lost,  because  the  plaintiffs,  suc- 
ceeding to  the  reversion,  could  recover  the  whole  of  it  by  action 
founded  on  the  very  leases  themselves.  The  English  statute,  like 
ours,  was  enacted  to  remedy  the  apparent  injustice  of  the  rule  which 
absolved  a  lessee  from  paying  any  rent,  where  his  interest  was  de- 
termined between  the  rent  days  by  the  expiration  of  a  life  estate 
on  which  the  lease  depended.  More  recent  legislation  in  England  has 
gone  still  further.  The  statute  of  4  W.  IV,  c.  22,  after  reciting  that 
by  law  rents  due  at  fixed  periods  were  not  apportionable,  and  after 
reciting  the  inconvenience  of  that  rule,  proceeds  to  declare  that  all 
rents  made  payable  at  such  periods  under  any  instrument  executed 
after  the  passing  of  the  act,  should  be  apportioned  so  that  on  the 
termination,  by  death  or  any  other  means,  of  the  estate  of  the 
person  entitled  to  the  rents,  such  person,  or  his  representative, 
should  have  a  portion  of  such  rents,  according  to  the  time  elapsed 
since  the  last  period  of  payment.  By  a  further  provision,  the 
entire  rent  is  to  be  received  and  recovered  from  the  tenant,  by  the 
person  who  would  be  entitled  to  recover  it  if  the  act  had  not  been 
passed,  and  is  to  be  held  by  him  subject  to  apportionment,  which 
can  be  enforced  against  him  by  suit  at  law,  or  in  equity.  It  will 
be  seen  that  this  statute  recognizes  the  old  rule,  while  it  declares  a 
new  one  for  future  leases,  and  that  it  also  carefully  protects  the 
tenant  against  more  than  one  action  for  the  entire  rent.  We 
have  no  such  legislation  in  this  State.  If  we  should  adopt  the 
principle  of  that  statute,  in  regard  to  apportionment,  without  legis- 
lative interference,  we  should  not  only  change  the  existing  law,  but 
the  change  must  be  made  without  the  protection  to  tenants  which  the 
English  statutes  secures.  If  we  declare  rent  to  be  apportionable 
in  cases  like  the  present,  it  will  follow,  according  to  our  rules 
of  pleading  and  practice,  that  each  party  entitled  to  a  share  may  sue 
the  tenant  to  recover  it.  To  illustrate,  if  the  defendant  has  no 
interest  in  the  rents  now  in  question,  then  he  cannot  retain  the 
portion  in  his  hands.  If  he  has  an  interest,  then  to  that  extent 
he  could,  under  our  practice,  recover  so  much  as  belonged  to  him, 
by  suit  against  the  tenants,  if  they  had  not  paid  these  rents.  And 
I  think  that  even  a  notice  to  the  tenants  of  his  claim  to  a  share, 
would  take  away  from  them  their  right  to  pay  the  entire  sum  to 
the  persons  who,  as  remaindermen,  would  be  entitled  to  the  other 
share.  To  conclude  on  this  point,  Ave  find  that  the  rule  of  law 
denying  apportionment  in  a  case  like  this,  has  never  been  shaken; 
and  whatever  may  be  the  arguments,  founded  in  justice  or  expedi- 
ency, in  favor  of  a  different  rnle,  we  think  those  arguments  should 
be  addressed  to  the  legislature,  rather  than  to  the  courts. 

We  are,  therefore,  of  opinion  that  the  judgment  must  be  affirmed. 

Denio,  Selden,  Weight  and  Welles,  J*s.,  concurred.^ 

1  Clerke,  Davies,  and  Bacon,  Js..  dissented. 

See  BloodworUi  v.  Stevens,  51  Miss.  475;  Allen  v.  Van  Houton,  4  Harr. 


SECT.    Ill]  MORSE    V.    GODDARD  30'i 


MORSE  V.  GODDARD 

13  Met.  (Mass.)   177.     1847. 

This  was  an  action  of  debt,  brought  to  recover  five  dollars,  the 
amount  of  one  month's  rent  of  a  tenement.  At  the  trial  in  the 
court  of  common  pleas,  before  Washburn,  J.  on  ajipeal  from  a 
justice  of  the  peace,  the  plaintiff  put  into  the  case  a  lease,  made 
by  him  to  the  defendant,  dated  January  6th,  1846,  of  a  certain 
tenement,  for  one  year,  reserving  rent  in  monthly  payments,  and 
stated  that  the  action  was  brought  for  the  rent  of  the  month  ending 
April  6th,  1846.  The  defendant  admitted  that  he  entered  into 
the  tenement,  under  the  lease,  and  that  he  was  still  in  possession. 
But  he  proposed  to  show,  in  defence,  that  in  February  1846,  W.  M. 
Benedict  and  P.  Merrick,  being  the  owners  of  the  tenement,  entered 
into  the  same,  and  required  the  defendant  to  pay  rent  to  them,  and 
that  he,  in  order  to  prevent  being  expelled  therefrom,  agreed  to  pay 
rent  to  them,  after  that  time.  The  plaintiff  objected  to  the  com- 
petency of  such  evidence;  but  the  court  ruled  that  it  was  admissible. 
Thereupon  the  defendant  introduced  evidence  tending  to  show  that, 
on  the  21st  of  February  1846,  the  attorney  of  said  Benedict  and 
Merrick  (in  company  with  two  witnesses)  met  the  plaintiff  in  the 
street,  and  informed  him  that  he  was  going  to  take  possession  of 
that  part  of  the  house  in  which  the  defendant  lived;  that  said 
attorney  and  two  witnesses  went  to  the  house,  and  went  into  the 
part  occupied  by  the  defendant,  and  told  him  they  had  come  to  turn 
him  out  unless  he  would  agree  to  attorn,  and  become  the  tenant 
of  said  Benedict  and  Merrick,  and  pay  rent  to  them;  that  the  de- 
fendant yielded,  and  agreed  so  to  pay  rent;  that  they  went  from  the 
house,  and  found  the  plaintiff,  and  told  him  what  had  been  done, 
and  what  the  defendant  had  agreed  to  do.  It  did  not  appear  that 
any  evidence  was  shown  to  the  defendant,  at  that  time,  of  any 
title  in  Benedict  and  Merrick.  In  order  to  prove  their  title  at 
the  trial,  the  defendant  introduced  sundry  deeds,  and  other  evidence. 
[See  Bnirdicf  v.  Mnrsp,  10  Met.  223.] 

The  judge  instructed  the  jury,  that  if  the  defendant  hona  fide 
yielded  possession  of  the  premises  to  Benedict  and  Merrick,  to  pre- 
vent being  actually  expelled,  and  the  plaintiff  then  had  notice  of 
this;  and  if  the  defendant  had  satisfactorily  proved  that  Benedict 


(N.  J.)  47;  Bank  of  Pfnmi/Jvnnio  v.  Wuc.  3  Watts  (Pa.)  394;  Cbm  v.  Fi.'<hcr, 
Cro.  Jac.  309;  Jnmer  v.  Morgan.  1  P.  Wms.  391;  Warren,  Ca,'^.  Wills  and 
Adm.,  p.  476.  Compare  Ilnmmnnd  v.  Thompson,  168  Mass.  531;  WiUi!<  v. 
Krovrndnnk.  200  Pac.  (Utah)  102.5;  Rockingham  v.  Prnricr,  1  P.  Wnis.  177; 
Snufhrrn  v.  Bcllasif;.  1  P.  Wms.  179  note. 

For  statutes  in  the  United  States  authorizing  the  apportionment  of  rent 
in  point  of  time,  see  1  Tiffany,  Landl.  and  Ten.,  p.  1077. 


308  MORSE    V.    (JODDARD  [CHAP,    VI 

and  Merrick  owned  the  estate  by  a  good  title,  and  had  a  right 
to  take  immediate  possession,  at  the  time  when  they  undertook  to 
turn  the  defendant  out  of  possession  —  their  title  and  possession 
being  adverse  to  those  of  the  defendant  and  his  lessor  —  such  yield- 
ing of  possession  was  equivalent  to  an  actual  ouster,  and  was 
competent  evidence  in  defence  to  the  plaintiff's  claim,  sued  in  this 
action  for  rent  accruing  after,  such  yielding  of  possession;  the 
burden  of  proof  being  upon  the  defendant. 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff 
excepted  to  the  judge's  instructions. 

Shaw,  C.  J.  In  a  justice  action  of  debt  for  a  month's  rent,  the 
defence  was,  that  the  defendant  had  been  ousted,  by  persons  having 
a  paramount  title,  before  the  commencement  of  the  time  for  which 
the  rent  was  claimed. 

The  defendant  offered  evidence  to  show,  that  persons  having 
a  valid  title,  paramount  to  that  of  the  defendant  and  his  lessor, 
the  plaintiff,  and  having  an  immediate  right  of  entry,  and  of  pos- 
session under  it,  made  an  actual  entry  on  the  premises,  and  re- 
quired the  defendant  to  pay  rent  to  them  from  the  time  of  such 
entry,  or  quit  the  premises.  But  it  is  objected  to  this  defence, 
that  a  tenant  cannot  contest  -the  title  of  his  lessor,  nor  set  up 
a  paramount  adverse  title  in  a  third  person.  And  we  think  it 
well  settled,  that  a  lessee,  taking  the  estate  of  his  lessor,  and  enter- 
ing into  possession  under  it,  admits  his  title,  and  is  estopped  from 
denying  that  title;  or,  what  is  in  effect  the  same  thing,  is  estopped 
from  setting  up  an  outstanding  title  in  a  third  person.  Doe  v. 
Smythe,  4  M.  &  S.  347.  Doe  v.  Mills,  2  Adolph.  &  Ellis,  17.  But 
this  is  not  inconsistent  with  another  rule,  that  where  there  is  an 
eviction  or  ouster  of  the  lessee,  by  a  title  paramount,  which  he 
cannot  resist,  it  is  a  good  bar  to  the  demand  for  rent,  on  the  plain 
ground  of  equity,  that  the  enjoyment  of  the  estate  is  the  considera- 
tion for  the  covenant  to  pay  rent,  and  when  the  lessee  is  deprived  of 
the  benefit,  he  cannot  be  held  to  pay  the  compensation.  Bac.  Ab. 
Rent,  L.  Cruise's  Dig.  tit.  28,  c.  3.  It  is  not  enough,  therefore, 
that  a  third  party  has  a  paramount  title;  but,  to  excuse  the  pay- 
ment of  rent,  the  defendant  must  have  been  ousted  or  evicted,  under 
that  title.  Hunt  v.  Cope,  Cowp.  242.  Pendleton  v.  Dyett,  4  Cow. 
581. 

But  an  eviction  under  a  judgment  of  law  is  not  necessary.  An 
actual  entry,  by  one  having  a  paramount  title  and  present  right  of 
entry,  is  an  ouster  of  the  tenant.  He  cannot  lawfully  hold  against 
the  title  of  such  party.  He  is  not  bound  to  hold  unlawfully,  and 
subject  himself  to  an  action,  and  is  not,  therefore,  compellable  to 
resist  such  entry.  Hamilton  v,  Cutts,  4  Mass.  349.  So,  when  an 
execution  creditor  is  put  into  possession  by  the  sheriff,  under  the 
levy  of  an  execution,  he  has  the  actual  and  exclusive  possession, 
and  may  maintain  trespass.     Gore  v.  Brazier,  3  Mass.   523. 


SECT.    Ill]      FIFTH  AVE.  BUILDING  CO.  V.  KERNOCHAN  309 

There  is  a  recent  case,  which  seems  to  us  alike  iu  principle. 
Smith  V.  Shcpard,  15  Pick.  147.  A  mortgagor  in  possession  made 
a  lease  for  years,  reserving  rent.  Afterwards,  the  mortgagee,  having 
a  paramount  title,  entered,  as  he  lawfully  might,  with  right  to 
take  the  rents  and  profits.  In  a  suit  by  lessor  against  lessee  for 
rent,  such  entry  under  a  paramount  title  was  held  to  be  an  ouster, 
and  a  good  bar  to  the  action. 

It  is  to  be  understood,  that  when  a  tenant  thus  relies  on  an  ouster 
in  pais,  without  judgment,  he  has  the  burden  of  proving  the  valid- 
ity of  the  elder  title,  the  actual  entry  under  it,  and  that  he  acted  in 
good  faith,  and  without  collusion  with  the  party  entering. 

The  instruction  to  the  jury  was,  that  if  the  defendant,  bona  fide, 
had  yielded  possession  of  the  premises  to  Benedict  and  Merrick, 
to  prevent  being  actually  expelled;  that  the  plaintiff  had  notice  of 
this;  and  that,  upon  the  evidence,  Benedict  and  Merrick  had  a 
good  title,  paramount  to  that  of  the  defendant  and  his  lessor,  and 
the  right  of  immediate  possession ;  their  entry  was  equivalent  to 
an  actual  ouster,  and  was  a  good  defence  to  the  action  for  rent. 
This  direction,  we  think,  was  right;  and  the  jury,  by  returning  a 
verdict  for  the  defendant,  affirmed  these  facts. 

Exceptions  overruled.^ 


THE  FIFTH  AVENUE  BUILDING  CO.  v.  KERNOCHAN, 
AS   EXECUTOR 

221  N.  Y.  370.     1917. 

Appeal,  by  permission,  from  an  order  of  the  Appellate  Division 
of  the  Supreme  Court  in  the  first  judicial  department,  entered 
May  18,  1917,  which  affirmed  an  order  of  Special  Term  overruling 
a  demurrer  to  the  answer. 

The  following  questions  were  certified :  "  1.  Is  there  an  implied 
covenant  for  quiet  enjoyment  in  the  lease  set  forth  in  the  i)l('adings 
in  this  action?  2.  Are  the  defenses  and  counterclaims  in  the  de- 
fendant's answer  sufficient  in  law  upon  the  face  thereof?" 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

Cardozo,  J.  The  action  is  for  rent.  The  plaintiff  leased  to  the 
defendant's  testator  part  of  the  first  floor  and  basement  of  the 
Fifth  Avenue  Building  in  tlic  city  of  New  York.  By  the  terms  of 
the  lease,  the  basement  included  a  vault  beneath  the  sidewalk.     This 

1  Lambert  v.  Estcft,  99  Mo.  604,  accord.  And  sop  18  L.  R.  A.  n.  s.  39G 
note. 

Damages  for  breach  of  covenant  for  quirt  cnjoymont  in  leases.  3  Willis- 
ton.  Contracts,  §  1404. 

On  interferenco  with  lessee's  possession  by  a  thinl  person  without  right, 
see  7  A.  L.  R.  1103  note. 


310  FIFTH  AVE.  BUILDING  CO.  V.  KERNOCHAN     [CHAP.   VI 

vault  was  i,ii  fact  maintained  under  a  revocable  license  from  the 
city  of  New  York.  During  the  term  of  the  lease,  the  city  revoked 
the  license  and  excluded  the  tenant,  at  first  from  the  whole  vault, 
and  later  from  part  of  it.  The  rent  in  suit  accrued  during  the 
period  of  exclusion.  The  defense  is  a  partial  eviction  with  a  demand 
that  the  rent  abate  in  proportion  to  the  diminished  rental  value. 
The  lease  contains  no  express  co.venant  for  quiet  enjoyment.  The 
landlord  insists  that  in  the  absence  of  such  a  covenant,  eviction  is 
no  defense.     We  do  not  share  that  view. 

Eviction  as  a  defense  to  a  claim  for  rent  does  not  depend  upon 
a  covenant  for  quiet  enjoyment,  either  express  or  implied.  It  sus- 
pends the  obligation  of  payment  either  in  whole  or  in  part,  because 
it  involves  a  failure  of  the  consideration  for  which  rent  is  paid 
(Royce  v.  Guggenheim,  106  Mass.  202;  Morse  v.  Goddard,  13  Mete. 
179;  O'Brien  v.  Ball,  119  Mass.  28;  Lodge  v.  Martin,  31  App. 
Div.  13,  14;  Lawrence  v.  French,  25  Wend.  443;  Pendleton  v.  Dyett, 
4  Cow.  581,  583;  8  Cow.  727,  730;  18  Halsbury  Laws  of  England, 
Landlord  and  Tenant,  479,  480,  482;  Cruise  Dig.,  title  28,  ch  3., 
sec.  1;  Bacon  Abridg.,  Rent  L. ;  Woodfall  Landlord  k  T.  [19th  ed.] 
47'8,  486.)  We  are  dealing  now  with  an  eviction  which  is  actual 
and  not  constructive.  If  such  an  eviction,  though  partial  only,  is 
the  act  of  the  landlord,  it  suspends  the  entire  rent  because  the 
landlord  is  not  permitted  to  apportion  his  own  wrong.  If  the 
eviction  is  the  act  of  a  stranger  by  force  of  paramount  title,  the 
rent  will  be  apportioned,  and  a  recovery  permitted  for  the  value  of 
the  land  retained  {Christopher  v.  Austin,  11  N.  Y.  216;  Blair  v. 
Claxton,  18  N.  Y.  529;  Duhain  v.  Merjuod,  J.  &  K.  J.  Co.,  211 
N.  Y.  364;  Royce  v.  Guggenheim,  supra).  The  right  to  an  abate- 
ment of  the  rent  in  such  circumstances  does  not  grow  out  of  the 
covenant  for  quiet  enjoyment.  It  has  been  enforced  in  cases  where 
there  was  no  breach  of  any  covenant  (Gates  v.  Goodloe,  101  U.  S. 
612,  619;  Gillespie  v.  Thomas,  15  Wend.  464;  Lodge  v.  Martin, 
supra,  and  cases  there  cited).  In  the  days  of  common  law  pleading, 
it  was  the  subject  of  a  plea  in  bar  (Pendleton  v.  Dyett,  supra;  Smith 
V.  Shepard,  15  Pick.  147,  149).  A  covenant  for  quiet  enjoyment, 
either  express  or  implied,  is  essential  where  eviction  by  title  para- 
mount is  the  subject  of  a  claim  for  damages.  It  is  not  essential  where 
the  tenant  asserts  a  failure,  either  complete  or  partial,  of  the  con- 
sideration for  the  rent.  Carter  v.  Burr  (39  Barb.  59)  neatly  illus- 
trates the  distinction.  There  a  lease  had  been  made  in  fee.  Such 
a  lease,  unlike  one  for  years,  was  held  to  be  a  conveyance  of  real 
estate,  and  no  covenant  was  implied.  For  that  reason,  the  tenant's 
claim  for  damages  as  the  result  of  a  partial  eviction  was  rejected, 
but  none  the  less  he  was  held  to  be  entitled  to  an  abatement  of  the 
rent.  [The  learned  judge  then  considered  provisions  of  the  New 
York,  Real  Property  Law  (Consol.  Laws.  ch.  50,  §§  2,  240,  251),* 

^  §  251.  "A  covenant  is  not  implied  in  a  conveyance   of  real  property, 
whether  the  convej'ance  contains  any  special  covenant  or  not." 


SECT.    Ill]      FIFTH  AVE.  BUILDING  CO.  V.  KERNOCHAN  311 

and  decided  that  they  did  not  prohibit  the  implication  of  a  covenant 
for  quiet  enjoyment  in  a  lease.  He  concluded  as  follows :] 
The  rule  that  a  covenant  for  quiet  enjoyment  will  be  read  into 
a  lease  has  become  a  settled  rule  of  property.  We  cannot  believe 
that  the  legislature  would  have  overthrown  such  a  rule  without 
clearer  token  of  its  purpose.  It  would  not  have  retained  the  old 
phrases,  and  left  a  change  of  meaning  to  be  gathered  by  doubtful 
inference  from  the  order  of  the  sections.  More  significant  than 
anything  which  it  did  change  are  the  things  which  it  omitted  to 
change.     The  ancient  landmarks  have  been  preserved. 

Any  other  conclusion  Avould  lead  indeed  to  strange  anomalies. 
A  covenant  for  quiet  enjoyment  will  be  implied  in  oral  leases.  It 
results  from  the  mere  relation  of  the  parties  (Markham  v.  Paget, 
1908,  1  Ch.  697;  Budd-Scott  v.  Daniell,  1902,  2  K.  B.  351;  Dexter  v. 
Manley,  4  Cush.  14;  Rawle  Covenants  of  Title,  sec.  274).  But 
the  statutory  definition  of  conveyances  is  limited  to  instruments  in 
writing  (Real  Prop.  L.  sec.  205,  now  sec.  240).  The  landlord, 
therefore,  would  have  us  hold  that  the  covenant  is  implied  when 
the  lease  is  oral  and  rejected  when  the  lease  is  written.  Such  a 
distinction,  if  it  is  to  be  made,  must  rest  upon  a  clearer  mani- 
festation of  the  legislature's  purpose. 

One  other  argument  in  support  of  the  landlord's  claim  remains 
to  be  considered.  The  tenant,  it  is  said,  was  chargeable  with 
knowledge  that  the  landlord's  occupation  of  the  highway  was  by 
force  of  a  revocable  license  (Deshong  y.  City  of  N.  Y.,  176  N.  Y. 
475).  From  this  imputed  knowledge,  the  consequence  is  deduced 
that  ouster  by  the  city  was  by  implication  excepted  from  the  cove- 
nant, and  that  the  tenant,  having  taken  his  chances,  must  continue 
to  pay  rent.  But  the  language  of  the  lease  repels  that  view  of  the 
relation.  It  is  all  a  question  of  intention,  and  here  the  inten- 
tion is  unmistakable.  The  vault  and  the  rest  of  the  basement  are 
joined  in  a  single  description;  and  the  whole  is  leased  to  the 
tenant  for  a  term  of  ten  years.  Nothing  in  the  lease  suggests  a 
distinction  between  the  landlord's  duties  in  respect  of  one  part  and 
his  duties  in  respect  of  others.  We  cannot  doubt  that  the  enjoy- 
ment of  the  whole  was  the  consideration  for  the  rent.  The  pur- 
pose could  hardly  have  been  clearer  if  the  vault  had  been  leased 
alone.  The  space  within  the  highway  was  more  than  an  incident 
or  an  appurtenance.  Tt  was  the  subject-matter  of  the  grant.  Be- 
ing the  subject-matter  of  the  grant,  it  was  also  the  subject-matter 
of  the  covenant  (Pahst  Breiring  Co.  v.  Thorley,  145  Fed.  Kep.  117; 
170  Fed.  Bep.  3.3S). 

In  thus  holding,  we  ])hi('e  tlie  incident  of  loss  where  justice  re- 
quires it  to  fall.  Without  warning  the  tenant  of  the  chance  of 
revocation,  the  landlord  undertook  to  make  a  lease  Avhich  should 
continue  for  a  fixed  term.  We  will  not  whittle  down  the  conse- 
quences that  normally  attach  to  such  a  letting  by  nice  assumptions 


312  WHITEHALL   COURT   LIM.    V.    ETTLINGER      [CHAP.   VI 

of  constructive  notice.  The  tenant  had  the  right  to  take  the  land- 
lord at  his  word.  Whether  the  paramount  title  be  public  or  pri- 
vate, the  consequence  of  ouster  is  a  suspension  of  the  rent. 

The  order  should  be  affirmed  with  costs,  and  the  questions  cer- 
tified answered  in  the  affirmative. 

HiscocK,  Ch.  J.,  Chase,  Collin,  Hoqan,  McLaughlin  and  Crank, 
JJ.,  concur.  *  Order  affirmed} 


WHITEHALL  COUKT  LIM.  v.  ETTLINGER 
[1920]  1  K.  B.  680.     1919. 

Trial  of  action  before  Earl  of  Reading  C.  J.  without  a  jury. 

The  plaintiffs  were  the  owners  of  a  block  of  buildings  known 
as  Whitehall  Court,  which  were  let  out  in  flats,  two  of  them  being 
let  to  a  Mr.  Karl  Ettlinger  under  two  leases  dated  respectively 
June  3  and  November  21,  1915,  each  of  them  for  a  term  of  three 
years  from  June  24,  1915,  at  the  rents  of  475L  and  200L  per  annum 
respectively,  the  tenant  covenanting  to  pay  the  rents  reserved  by  the 
leases. 

Each  of  the  leases  contained  a  clause  (No.  16)  that  the  land- 
lords would  supply  and  the  tenant  would  purchase  from  them  only 
all  food,  wines,  spirits  and  all  other  consumable  and  domestic  stores 
and  fuel  which  the  tenant  might  require  for  use  upon  tlie  premises 
at  the  current  tariff  price  from  time  to  time  in  force  at  Whitehall 
Court. 

In  December,  1916,  the  competent  military  authorities,  acting 
under  the  Defence  of  the  Realm  Regulations,  served  a  notice 
upon  the  tenant  stating  that  the  War  Department  required  imme- 
diate possession  of  his  flats.  The  tenant  objected  to  give  up  posses- 
sion. On  May  17,  1917,  the  tenant  was  informed  by  His  Majesty's 
Office  of  Works  that  the  requisitioning  of  his  flats  by  the  military 
authorities,  notice  of  which  had  been  given  on  December  14,  1916, 
must  take  immediate  effect,  and  that  possession  would  be  required 
by  Saturday  night.  May  19.  The  tenant  accordingly  vacated  the 
flats  and  went  to  an  hotel,  the  furniture  being  removed  from  the  flats 
by  H.M.'s  Office  of  Works.  He  refused  to  occupy  a  flat  which  it 
was  suggested  that  he  should  occupy  in  substitution  for  the  two  flats. 

The  tenant  was  informed  by  H.M.'s  Office  of  Works  that  the  com- 
mandeering of  his  flats  did  not  terminate  his  personal  liability  to  the 
landlords,  and  that  he  must  make  a  formal  claim  for  compensation 
upon  the  proper  form  to  the  Defence  of  the  Realm  Losses  Commis- 
sion, and  that  until  such  claim  had  been  duly  completed   and  sub- 

1  See  Fillebrown  v.  Hoar,  124  Mass.  580;  Cheairs  v.  Coats,  77  Miss.  846; 
Seahrook  v.  Moyer,  88  Pa.  417;  Poston  v.  Jones,  2  Ired.  Eq.  (N.  C.)  350; 
Stevenson  v.  Lombard,  2  East  575. 


SECT.    IIlJ       WHITEHALL   COURT   LIM.    V.   ETTLINGER  313 

mitted  to  the  Commission  the  Office  of  Works  could  not  assume  the 
responsibility  for  the  rent  of  the  flats;  but  that  if  the  claim  was 
duly  made  the  Board  would  recommend  to  the  Defence  of  the  Realm 
Losses  Commission  that  he  should  be  indemnified  against  the  obliga- 
tions under  his  agreement  during  the  period  of  the  Government 
occupation.  The  tenant  however  refused  to  make  any  claim  to  the 
Commission,  contending  that  he  was  not  liable  for  the  payment  of 
rent  in  respect  of  the  two  flats  under  the  two  leases  after  the  Govern- 
ment took  possession.  The  plaintifl's,  as  landlords,  also  refused  to 
make  any  claim  to  the  Commission,  and  relied  upon  their  right 
against  the  tenant  for  payment  of  the  rent  in  respect  of  the  two  flats 
under  the  terms  of  the  two  leases. 

The  tenant  paid  the  rent  for  the  two  flats  to  the  plaintiffs  up  to 
May  19,  1917,  when  the  military  authorities  took  possession  of  the 
flats  but  declined  to  pay  rent  subsequent  to  that  date. 

The  military  authorities  were  still  in  occupation  of  the  two  flats 
when  the  two  leases  expired  on  June  24,  1918. 

•  The  plaintiffs  sued  the  tenant  to  recover  405/.  19s.  Qd.,  the  balance 
of  the  rent  due  in  respect  of  the  two  flats  to  December  25,  1917. 
While  the  action  was  pending  the  tenant  died,  and  the  action  was 
continued  against  his  executrix. 

Earl  of  Reading  C.  J.  The  question  to  be  determined  in  this 
case  is  whether  or  not  the  plaintiffs  are  entitled  to  recover  the  rent 
due  under  the  leases  by  virtue  of  the  covenant  to  pay  rent  therein 
contained  into  which  the  tenant  had  entered  with  the  plaintiffs.  I 
have  come  to  the  conclusion  that  there  is  nothing  in  the  facts  and 
circumstances  of  this  case  which  would  justify  me  in  saying  that  the 
tenancy  created  by  the  leases  had  been  thereby  determined.  If  I 
were  dealing  with  a  commercial  contract,  or  an  agreement  between 
the  parties  which  did  not  also  amount  to  a  demise  of  the  premises  as 
in  this  case,  there  would  be  great  force  in  the  arguments  which  were 
put  before  me.  It  was  said  in  the  first  place  that  this  is  a  case 
of  eviction  by  title  paramount,  and  if  it  were  so  Mr.  Giveen  Avould 
have  made  good  the  first  proposition  upon  which  he  rested  his  case. 
But  I  am  not  satisfied  that  this  was  an  eviction  at  law.  When  the 
tenant  moved  away  from  the  flats  he  did  so  by  force  of  circum- 
stances —  that  is,  by  the  order  of  the  Government  authorities.  I  do 
not  think  however  that  it  could  be  said  that  he  was  evicted  by  title 
paramount.  In  the  circumstances  there  was  no  eviction  of  him  by 
the  Government  and  no  determination  of  the  estate  created  by  the 
leases.  The  tenant,  for  all  he  knew,  might  have  been  able  to  return 
to  the  flats  after  a  short  absence,  on  the  other  hand  he  might  have  to 
remain  away  a  long  time  as  in  tlie  present  case,  even  until  the  end 
of  the  term.  I  am  however  not  satisfied  that  this  case  is  brought  with- 
in the  principle  to  which  reference  has  been  made  —  namely,  that 
this  is  an  eviction  by  law  —  that  is,  by  title  paramount.  If  it  were 
I  should  have  to  hold  that  the  act  of  the  Government  in  calling  upon 


314  WHITEHALL   COURT   LIM.    V.    ETTLINGER      [CHAP.   VI 

the  tenant  to  give  up  occupation  of  these  premises  to  the  War  Office 
operated  as  a  determination  of  the  estate  created  by  the  leases.  There 
is  nothing  in  the  notice  which  was  served  upon  the  tenant  to  show 
that  the  Government  required  more  than  the  occupation  of  the  prem- 
ises for  an  undefined  period.  Notice  was  first  given  to  the  tenant 
in  December,  1916,  that  the  premises  had  been  requisitioned  and 
that  possession  would  be  required  by  a  certain  time,  and  asking  him 
to  make  arrangements  to  move  from  the  flats.  This  appears  to  be 
the  way  in  which  matters  were  left  right  up  to  the  end  of  the  term  in 
June,  1918.  Nothing  further  seems  to  have  been  done.  It  is  true, 
as  Mr.  Giveen  contends,  that  there  was  a  requisition  of  premises  for 
the  time  being,  but  that  is  all  the  notice  amounts  to.  I  cannot  read 
it  as  amounting  to  an  eviction  in  law  of  the  tenant.  Reference  was 
made  by  Mr.  Giveen  to  a  passage  in  Bacon's  Abridgment,  vol.  vii.,  p. 
58,  which  was  taken  from  Rolle's  Abridgement,  and  afterwards  re- 
peated in  Gilbert  on  Rents,  p.  145,  where  the  law  is  laid  down  as 
follows :  "  That  if  the  lands  demised  be  evicted  from  the  tenant,  or  re- 
covered by  a  title  paramount,  the  lessee  is  discharged  from  the  pay- 
ment of  the  rent  from  the  time  of  such  eviction :  but,  notwith- 
standing such  recovery  or  eviction,  the  tenant  shall  pay  the  rent  that 
became  due  before  the  recovery:  because  the  enjoyment  of  the  land 
being  the  consideration  for  which  the  tenant  was  obliged  to  pay  the 
rent,  so  long  as  the  consideration  continued,  the  obligation  must  be 
in  force;  there  being  the  same  reason  that  the  tenant  should  pay  the 
rent,  for  part  of  the  time  contracted  for,  as  for  the  whole  term,  if 
he  had  enjoyed  the  land  so  long."  The  same  observation  that  I 
have  already  made  would  also  apply  to  this  statement  of  the  law. 
The  whole  question  is  whether  there  has  been  an  eviction  by  title 
paramount.    The  first  point  therefore  fails. 

The  second  point  taken  by  Mr.  Giveen  was  that  there  had  been  a 
determination  of  the  w^hole  tenancy  by  reason  of  the  requisition 
of  the  flats.  It  seems  to  me  that  that  depends  upon  much  the  same 
considerations.  It  is  said  that,  looking  at  all  the  circumstances, 
treating  the  case  as  one  would  an  ordinary  contract,  and  applying 
the  general  principles  which  are  not  in  dispute,  I  ought  to  hold  the 
whole  tenancy  to  be  at  an  end.  But  I  find  the  same  difficulty  with 
regard  to  this  point  as  I  did  with  regard  to  the  first  point.  The 
judgment  of  Lush  J.  in  London  and  Northern  Estates  Co.  v.  Schles- 
inger,  [1916]  IK.  B.  20,  24,  has  been  cited,  where  he  said:  "It  is 
not  correct  to  speak  of  this  tenancy  agreement  as  a  contract  and 
nothing  more.  A  term  of  years  was  created  by  it  and  vested  in  the 
appellant,  and  I  can  see  no  reason  for  saying  tliat  because  this  Order 
disqualified  him  from  personally  residing  in  the  flat  it  afi'ected  the 
chattel  interest  which  was  vested  in  him  by  virtue  of  the  agreement." 
I  think  that  dictum  applies  to  the  present  case.  I  can  see  no  reason 
why  the  chattel  interest  which  was  vested  in  the  tenant  by  virtue 
of  the  two  leases  was  affected  merely  because  he  was  personally  pre- 


SECT.    Ill]  ROBBINS    V.    MCCABE  315 

vented  from  residing  in  the  flats.  If  I  were  dealing  with  an  ordinary 
contract  I  should  feel  great  force  in  the  argument  addressed  to  me 
by  Mr.  Giveen,  but  1  can  find  no  authority  and  no  justification  for 
saying  that  I  must  apply  to  the  present  case  the  principles  laid  down 
in  the  citations  made  by  Mr.  Giveen.  The  agreements  contained 
in  the  leases  are  not  only  contracts,  they  also  create  an  estate  by  de- 
mise for  a  term  of  years.  Therefore  I  think  that  the  plaintiffs  are  en- 
titled to  recover  their  rent.  This  decision  still  leaves  the  tenant  free 
to  claim  from  the  Defence  of  the  Realm  Losses  Commission  for 
an  indemnity  in  respect  of  his  payment  of  rent.  lie  has  not  been 
able  to  enjoy  the  occupation  of  the  premises  as  he  thought  to  do 
when  he  entered  into  the  tenancy,  nevertheless  he  has  agreed  to  pay 
rent,  and  I  cannot  find  sufficient  ground  for  saying  that  he  is  ex- 
cused from  paying  rent,  and  therefore  I  must  give  judgment  for  the 
plaintiffs  with  costs.  Judgment  for  pJaintijfs} 


EOBBIlSrS  V.  McCABE 

239  Mass.  275.     1921. 

Appeal  from  Municipal  Court  of  Boston,  Appellate  Division;  John 
G.  Brackett,  Judge. 

Action  by  Elliott  D.  Bobbins  against  Catherine  A.  McCabe.  Eroni 
an  order  of  the  appellate  division  of  the  municipal  court  dismissing 
the  report  of  the  trial  judge,  defendant  appeals.    Affirmed. 

The  declaration  alleged  the  execution  of  the  lease  mentioned  in  the 
opinion,  that  plaintiff  had  fully  kept  and  performed  all  its  terms, 
agreements,  and  covenants,  but  that  defendant  had  neglected  and 
refused  to  pay  the  rental  therein  reserved,  and  was  indebted  to  plain- 
tiff in  the  sum  of  $1,500,  being  12  equal  monthly  payments  from  May 
1,  1919,  to  May  1,  1920.  The  court  gave  defendant's  first  request 
and  refused  her  second  and  third  requests.  The  second  requested 
ruling  was  that  the  plaintiff  could  not  recover  for  the  repairs  charged 

1  A  lease  of  land  and  house  contained  covenants  to  pay  rent,  to  insure, 
to  deliver  up  in  repair,  and  in  case  of  fire,  to  expend  the  insurance  money  in 
rebuilding.  During  the  lease  the  military  under  the  Defence  of  the  Realm 
Act  took  possession  and  occupied  until  after  the  end  of  the  term.  The 
lessee  paid  some  rent  after  being  dispossessed.  Later,  six  weeks  before  the 
end  of  th'e  term,  the  house  burned  down  and  was  not  rebuilt.  It  was  held 
that  the  lessee  must  pay  the  last  quarter's  rent,  but  was  not  liable  on  the 
covenants  to  vield  up  in  good  repair  or  to  rebuild.  Curling  v.  Mattey,  [19201 
3  K.  B.  608.  " 

In  the  United  States  when  the  whole  of  leased  premises  are  taken  by 
eminent  domain  the  liability  for  rent  usually  comes  to  an  end.  Corrigan  v. 
Chicago,  144  111.  537;  O'Bnen  v.  Ball,  119  Mass.  28;  Barclay  v.  Picklca,  38 
Mo.  143;  Lodge  v.  Martin,  PI  App.  Div.  (N.  Y.)  13.  Contra.  Foote  v. 
Cincinnati,  11  Ohio  409.  Compare  Dyer  v.  Wightman,  66  Pa.  425;  McCardell 
V.  Miller,  22  R.  I.  96. 


316  ROBBINS    V.    MCCABE  [CHAP.   VI 

for  in  liis  declaration  on  all  the  evidence.  The  third  request  Avas  that, 
if  the  court  found  as  a  fact  that  the  property  leased  to  defendant 
was  leased  for  a  specific  purpose,  and  that  purpose  was  known  to 
plaintiif  before  the  lease  was  executed,  and  if  the  business  for  which 
defendant  hired  the  premises  became  illegal  under  the  laws  of  the 
United  States,  there  could  be  no  recovery  by  plaintiff  under  the  lease 
for  any  period  of  time  after  the  business  became  illegal. 

Crosby,  J.  The  plaintiff  executed  and  delivered  to  the  defendant 
a  written  lease  of  certain  real  estate  for  a  term  of  five  years  from  the 
first  day  of  September,  1915.  The  lease  provides  that  certain  repairs 
shall  be  made  by  the  lessee  during  that  period.  Under  date  of  April 
20,  1917,  the  lessee  assigned  the  lease  for  the  remainder  of  the  term 
to 'the  firm  of  G.  L.  Sullivan  &  Co.,  the  plaintiff  in  writing  con- 
senting thereto,  "  but  without  releasing  said  Catherine  A.  McCabe 
from  liability  thereunder  by  reason  of  her  said  assignment.  .  .  ." 

1.  The  report  recites  that  the  action  is  to  recover  "  rental  and  cost 
of  repairs  under  a  written  lease";  but  the  declaration  alleges  that 
the  defendant  is  "  indebted  to  the  plaintiff  [in]  the  sum  of  fifteen 
hundred  dollars,  that  being  twelve  equal  monthly  payments  from 
May  1,  1919,  to  May  1,  1920."  As  there  is  no  allegation  that  the 
defendant  is  indebted  for  the  cost  of  repairs  and  no  claim  is  made 
therefor,  it  follows  that  no  recovery  could  be  had  on  that  ground. 
The  statement  in  the  report  that  the  action  is  to  recover  for  the  cost 
of  repairs  is  erroneous,  that  ground  of  recovery  not  having  been 
pleaded.    The  cause  of  action  named  in  the  declaration  must  govern. 

2,  3.  The  only  questions  of  law  appearing  in  the  record  arise  by 
reason  of  the  refusal  of  the  trial  judge  to  make  the  second  and  third 
rulings  requested  by  the  defendant.  The  second  was  properly  refused, 
it  was  inapplicable  in  view  of  the  pleadings.  The  third  request  was 
rightly  refused. 

The  trial  judge  found  that  the  plaintiff  knew  and  understood  that 
the  premises  had  been  occupied  by  the  defendant  for  the  sale  of 
intoxicating  liquor  and  it  was  her  desire  and  intention  to  continue 
in  the  liquor  business  on  the  leased  premises;  and  that  the  plaintiff 
knew  the  property  had  "  a  special  and  peculiar  value  as  a  liquor 
saloon  on  account  of  its  location,  and  that  if  used  for  any  other  pur- 
pose its  value  would  be  much  less."  These  findings  do  not  relieve 
the  defendant  from  the  covenant  to  pay  rent,  even  if  before  the  ex- 
piration of  the  term  the  sale  of  intoxicating  liquor  upon  the 
premises  was  prohibited  by  law.  Nothing  in  the  written  instru- 
ment prevents  the  lessee  from  occupying  the  property  for  any 
lawful  trade;  it  contains  no  reference  to  the  character  of  the 
•  business  to  be  conducted  there,  nor  anything  from  which  it  could 
be  inferred  it  was  meant  by  the  parties  that  the  defendant  should 
be  released  from  liability  for  the  payment  of  rent,  if  at  any  time 
during  the  term  it  became  unlawful  to  carry  on  the  liquor  busi- 
ness there. 


SECT.    Ill]  ROBBINS    V.    MCCABE  317 

The  findings  that  the  parties  understood  and  intended  that  the 
defendant  should  carry  on  the  liquor  business  on  the  premises  do 
not  affect  the  result;  the  terms  of  the  written  instrument  are 
free  from  ambiguity,  and  cannot  be  affected  by  any  intention  of 
the  parties  contrary  to  its  provisions.  Taylor  v.  Finnigan,  189 
Mass.  568,  76  N.  E.  203,  2  L.  R.  A.  (N.  S.)  973;  Gaston  v. 
Gordon,  208  Mass.  265,  94  N".  E.  307.  It  is  conclusively  presumed 
to  express  the  contract.  Jennings  v.  Pujfer,  203  Mass.  534,  89 
K  E.  1036;  Perry  v.  J.  L.  Mott  Iron  Works  Co.,  207  Mass.  501, 
93  INT.  E.  798;  Gaston  v.  Gordon,  supra.  If  the  parties  con- 
templated that  the  lease  should  be  modified  or  terminated  before 
the  expiration  of  the  term  in  the  event  that  the  sale  of  intoxicating 
liquor  on  the  premises  for  any  reason  should  be  unlawful, 
a  provision  to  meet  that  contingency  should  have  been  inserted 
therein. 

The  findings  of  the  court,  if  treated  as  findings  that  the  property 
was  leased  for  a  "  specific  purpose  and  that  that  purpose  was 
known  to  plaintiff  before  the  lease  was  executed  "  were  immaterial ; 
the  lease  is  to  be  construed  in  accordance  with  its  plain  language 
and  cannot  be  affected  by  the  previous  oral  understanding  of  the 
parties. 

4.  The  rule  that  incompetent  evidence  admitted  without  objection 
is  to  have  its  appropriate  probative  effect.  Orpin  v.  Morrison, 
230  Mass.  529,  531,  533,  120  N.  E.  183  has  no  application  to  the 
facts  ill  the  case  at  bar.  Order  dismissing  report  affirmed.'^ 

^  The  adoption  of  a  law  prohibiting  the  sale  of  liquor  ha?  not  been  held 
to  justify  a  tenant  in  refusing  to  pay  rent  for  property  which  the  parties 
intended  to  be  used  as  a  saloon.  Goodrum  Tobacco  Co.  v.  Potts-Thompson 
Liquor  Co..  133  Ga.  776;  Shreveport  Ice  Co.  v.  Mdndel.  128  La.  314;  Kcrley 
v.  Mayer.  10  Miscel.  (N.  Y.)  718,  aff'd.  in  155  N.  Y.  636;  MUler  v.  Maguire, 

18  R.  I.  770;  Mon  Antonio  Brewing  Assoc,  v.  Brents,  39  Tex.  Civ.  App.  443; 
Hayton  v.  Seattle  Brewing  Co.,  66  Wash.  248;  Hecht  v.  Acme  Coal  Co.,  19 
Wyo.  18.    Contra,  Heart  v.  East  Tennessee  Brewing  Co.,  121  Tenn.  69. 

But  if  the  use  of  the  premises  is  restricted  to  '"  saloon  purposes  "  a  con- 
trary result  has  been  reached.  Greil  Bros.  v.  Mahson,  179  Ala.  444;  Kahn 
V.  ivilhelm,  118  Ark.  239;  Hooper  v.  Mueller,  158  Mich.  595;  Doheriy  v. 
Eckstein  Co.,  115  Miscel.  (N.  Y.)  175  (Volstead  act);  Stratford  v.  Seattle 
Brewing  Co.,  94  Wash.  125.  But  see  O'Byme  v.  Henley,  161  Ala.  620;  Stand- 
ard Brewing  Co.  v.  Weil,  129  Md.  487;  Houston  Ice  Co.  v.  Keeiian,  99  Tex. 
79;  Koen  v.  Fairmont  Brewing  Co.,  69  W.  Va.  94;  Hecht  v.  Acme  Coal  Co., 

19  Wyo.  18.     Compare  Goldberg  v.  Callender,  113  Atl.  (Conn.)   170. 

Cases  are  collected  in  19  L.  R.  A.  N.  S.  964  note;  23  L.  R.  A.  N.  S. 
497  note;  34  L.  R.  A.  N.  S.  773  note;  L.  R.  A.  1917  C  935  note. 

See  McCullough  Realty  Co.  v.  Laemmle  Film  Service.  181  Iowa  594; 
Conklin  v.  SiliH'r,  187  Iowa  819;  Taylor  v.  Finnigan,  189  Mass.  568:  McMorran 
Milling  Co.  v.  Little  Co.,  201  Mich.  301 ;  Adler  v.  Miles,  69  Miscel.  (N.  Y.) 
601;  Abbaye  v.  United  States  Motor  Co.,  71  Miscel.  (N.  Y.)  4.54;  7  A.  L.  R. 
836  note. 


318  PARKS    V.    BOSTON  [CHAP.   VI 

PAEKS  V.  BOSTON 
15  Pick  (Mass.)   198.     1834. 

This  was  a  complaint  presented  to  the  Court  of  Common  Pleas, 
praying  that  a  jury  might  be  empannelled  to  assess  the  damages 
sustained  by  the  complainant  jn  consequence  of  the  taking  of  313 
square  feet  of  land  by  the  mayor  and  aldermen  of  Boston,  on  July 
13,  1829,  for  the  purpose  of  widening  Doane  street  in  that  city. 

The  respondents  admitted  the  taking  of  the  land,  but  traversed 
the  allegation  in  the  complaint,  that  the  complainant  was 
damaged  in  his  property  thereby,  and  tendered  an  issue  thereon, 
which  was  joined. 

In  the  course  of  the  trial,  the  respondents,  in  order  to  show, 
that  the  complainant  was  not  entitled  to  recover  the  full  value  of 
the  land  at  the  time  when  it  was  taken,  and  that  they  were  liable 
to  pay  one  Enoch  Patterson,  who  had  preferred  a  complaint 
against  them,  for  the  loss  of  the  use  of  the  land  taken,  from  the  time 
when  it  was  taken  until  January  1,  1832,  proved  the  execution 
of  a  lease  of  the  land  taken  and  of  other  lands,  which  was  made 
by  the  complainant  to  Patterson  before  the  taking  of  the  land, 
by  virtue  of  which  lease  Patterson  was  entitled  to  hold  such  lands 
for  the  term  of  three  years  from  January  1,  1829,  at  an  annual 
rent  of  $725;  and  thereupon  they  contended,  that,  inasmuch  as 
the  complainant  would  be  entitled  to  recover  such  rent  of  Patterson 
during  the  continuance  of  the  lease,  a  deduction  should  be  made 
by  the  jury  on  this  account,  from  the  value  of  the  land.  The 
judge  instructed  the  jury,  that  part  of  the  land  leased  having  been 
taken  by  law  for  the  use  of  the  public,  without  the  consent  of 
the  complainant  or  Patterson,  the  lease  was  thereby  determined; 
that  the  city  would  not  be  liable  to  pay  Patterson  any  damages 
on  account  of  his  having  covenanted  to  pay  the  rent  to  the  com- 
plainant; and  that  the  complainant  was  entitled  to  recover  against 
the  city  the  full  value  of  the  land  taken,  as  if  it  had  not  been 
leased. 

To  this  ruling  the  respondents  excepted. 

The  jury  returned  a  verdict  for  the  complainant,  and  assessed  the 
damages   at   the   sum   of   $8800. 

Shaw  C.  J.  delivered  the  opinion  of  the  Court.  This  case  comes 
before  the  Court  upon  exceptions  taken  by  both  parties,  to  some  of 
the  decisions  of  the  learned  judge  who  tried  the  cause  in  the  court 
below,   in   point   of  law. 

"We  shall  first  consider  the  exceptions  taken  on  the  part  of  the 
city. 

This  claim  for  land  taken  to  widen  and  improve  streets  in  this 
city,  and  the  mode  of  seeking  the  remedy  therefor,  depends  upon 
the  provisions  and  the  construction  of  several  statutes. 


SECT.    Ill]  PARKS    V.    BOSTON  319 

By  St.  1821,  c.  109,  §  8,  being  the  act  providing  for  the  adminis- 
tration of  justice  in  the  county  of  Suffolk,  passed  cotemporaneously 
with  the  act  incorporating  the  city,  it  was  provided  that  the  Court 
of  Common  Pleas,  for  the  county  of  Suffolk,  should  have  all  the 
jurisdiction  before  that  time  vested  in  the  Court  of  Sessions  with 
regard  to  streets  and  ways. 

By  St.  1804,  c.  73,  authority  is  given  to  the  selectmen  of  Boston, 
(afterwards  transferred  to  the  mayor  and  aldermen  by  the  city 
charter,)  to  lay  out  and  widen  streets,  to  take  land  therefor  and 
remove  buildings;  and  the  owner  or  owners  of  the  land  and  build- 
ings, that  shall  be  so  taken  or  removed,  shall  recover  recompense 
for  the  damages,  which  he  or  they  may  thereby  sustain,  to  be 
adjusted  by  agreement,  or  as  shall  be  ordered  by  the  justices  of  the 
Court  of  General  Sessions  of  the  Peace,  upon  an  inquiry  into  the 
same  by  a  jury  to  be  summoned  for  that  purpose,  to  be  drawn  &c. 
The  *S^^.  1799,  c.  31,  §  3,  which  had  made  substantially  the  same 
provision,  directed,  that  the  damages  should  be  ascertained,  de- 
termined and  recovered  in  the  way  and  manner  pointed  out  by 
St.  1786,  c.  67,  entitled  "An  act  directing  the  method  for  laying 
out  highways." 

The  act  already  referred  to,  St.  1821,  c.  109,  §  8,  by  which  the 
authority  of  the  Court  of  Sessions  was  transferred  to  the  Court 
of  Common  Pleas,  so  far  altered  the  old  mode  of  proceeding  before 
a  sheriff's  jury  as  to  direct,  that  such  trial  should  be  had  at  the  bar 
of  the  Court  of  Common  Pleas,  in  the  same  manner  as  other  civil 
causes  are  there  tried,  by  the  jurors  there  returned  and  empanelled; 
and  that  the  jury,  to  whom  such  cause  might  be  committed,  should 
be  taken  to  view  the  place  in  question,  if  either  party  should  re- 
quire it. 

It  has  heretofore  been  decided  by  this  Court,  and  apparently 
upon  much  consideration,  in  the  case  of  Ellis  v.  Welcli,  6  Mass.  R. 
246.  that  the  term  "  owner  "  in  this  statute,  includes  every  person 
having  an  interest  in  real  estate  capable  of  being  damnified  by  the 
laying  out  of  a  street,  through  or  over  it,  and  is  equivalent  to  the 
description  of,  "any  person  damaged  in  his  property,"  as  used  in 
the  general  act  regulating  the  laying  out  of  highways,  St.  1786,  c. 
67,  §4. 

This  construction  appears  to  us  to  be  entirely  reasonable  and 
necessary.  It  is  a  remedial  act,  intended  to  carry  into  execution 
that  most  equitable  provision  of  the  constitution,  "that  when- 
ever the  public  exigencies  require  that  the  property  of  any  in- 
dividual should  be  appropriated  to  public  uses,  he  shall  receive 
a  reasonable  compensation  therefor."  To  give  effect  to  this  highly 
important  and  equitable  provision,  it  is  necessary  to  construe  the 
term  property  as  including  every  species  of  valuable  vested  inter- 
est. In  the  same  case  it  was  decided,  that  a  tenant  for  years  at  an 
annual  rent,  was  an  owner,  within  the  meaning  of  the  statute,  and 


320  PARKS    V.    BOSTON  [CHAP.   VI 

that  the  lessee  and  the  landlord  are  each  entitled  to  compensa- 
tion according  to  the  nature  and  niagiiitude  of  the  damages,  which 
they   may  have   respectively   sustained. 

There  seems  to  be  no  other  equitable  or  practicable  mode  of  exe- 
cuting this  statute.  There  may  be  a  lease  for  years  to  one,  with 
a  life  estate  to  another,  and  a  vested  remainder  in  a  third,  each 
of  whom  will  sustain  damage,  by  taking  a  part  of  the  estate;  but 
as  those  interests  are  entirely  distinct,  neither  of  these  parties 
could  claim  the  damages,  or  equitably  receive  the  compensation 
due  to  another.  Such  compensation  therefore  must  be  appor- 
tioned among  them,  according  to  the  relative  magnitude  and  value 
of  their  respective  interests,  and  of  course,  there  must  be  a  sepa- 
rate inquiry  and  a  separate  award  of  damages,  upon  the  com- 
plaint and  application  of  each.  Again,  there  seems  to  be  great 
difficulty  in  discovering  any  principle,  upon  which  it  can  be 
legally  held,  that  the  taking  part  of  an  estate  which  is  under 
lease,  for  a  public  easement,  wall  put  an  end  to  the  lease,  or  de- 
prive the  lessee  of  his  term,  or  exempt  him  from  his  liablity  to 
pay  the  reserved  rent. 

It  may  happen,  that  where  a  lease  is  held  for  a  short  term,  at 
a  rack  rent,  equal  to  the  annual  value  of  the  estate,  and  especially 
where  so  large  a  part  of  the  estate  is  taken  for  the  public  ease- 
ment, as  to  render  the  tenement  unfit  for  the  uses  for  which  it  was 
leased,  it  would  be  more  convenient  for  all  parties  to  consider  the 
lease  at  an  end,  and  to  permit  the  whole  damage  to  be  recovered 
by  the  landlord.  If  this  should  be  desired,  by  the  landlord  and 
tenant  respectively,  nothing  would  prevent  them  from  accomplish- 
ing it,  before  the  way  is  finally  laid  out  and  recorded,  by  a  sur- 
render of  the  term  by  the  tenant  and  an  acceptance  thereof  by  the 
landlord.  But  the  point  under  consideration  is,  w^hether  such 
determination  of  the  term  is  affected  by  the  operation  of  law,  with- 
out such  surrender. 

There  are  many  cases,  in  which  the  tenant  has  a  highly  valuable 
and  beneficial  interest  in  his  term,  as  where  he  holds  it  for  a 
long  term,  on  a  building  lease,  at  a  moderate  ground  rent,  or  at 
a  mere  nominal  rent,  or  where  a  large  fine  has  been  paid  upon  the 
commencement  or  renewal  of  the  lease.  It  may  be,  that  not- 
withstanding the  estate  is  diminished  in  quantity  by  the  taking  for 
public  use,  it  is  not  diminished  in  value,  but  even  increased  in  value 
to  the  lessee,  for  the  purposes  of  business  to  which  he  may  have 
occasion  to  apply  it.  Upon  what  principle  can  it  be  held,  that  in 
any  of  these  cases,  the  term  is  de  facto  extinguished  and  annihilated 
by  the  taking  of  a  part,  perhaps  a  small  and  unimportant  part, 
of  the  leased  property,  for  public  use? 

But  I  presume  this  supposed  effect  of  determining  the  term 
is  thought  to  result  from  the  other  branch  of  this  opinion,  which 
is,  that  by  the  act  of  thus  taking  away  a  part  of  the  leased  estate, 


SECT.    Ill]  PARKS    V.    BOSTON  321 

the  tenant  would  oe  exempted  from  the  payment  of  the  reserved 
rent,  and  therefore  the  hindlord  ought  to  receive  an  equivahnit 
in  his  compensation  from  the  public.  If  such  were  the  effect,  the 
inference  would   undoubtedly   be  correct. 

But  upon  what  priiici})le  can  it  be  maintained,  that  a  lessee  under 
such  circumstances  would  be  exempted  from  the  payment  of  the  stipu- 
lated rent?  The  lessee  takes  his  term,  just  as  every  other  owner  of 
real  estate  takes  title,  subject  to  the  right  and  power  of  the  public  to 
take  it  or  a  part  of  it,  for  public  use,  whenever  the  public  necessity 
and  convenience  may  require  it.  Such  a  right  is  no  incumbrance; 
such  a  taking  is  no  breach  of  the  covenant  of  the  lessor  for  quiet 
enjoyment.  The  lessee  then  holds  and  enjoys  exactly  what  was 
granted  him,  as  a  consideration  for  the  reserved  rent ;  which  is, 
the  whole  use  and  beneficial  enjoyment  of  the  estate  leased,  subject 
to  the  sovereign  right  of  eminent  domain  on  the  part  of  the  public. 
If  he  has  suffered  any  loss  or  diminution  in  the  actual  enjoyment 
of  this  use,  it  is  not  by  the  act  or  sufferance  of  the  landlord;  but 
it  is  by  the  act  of  the  public,  against  whom  the  law  has  provided  him 
an  ample  remedy.  If  he  is  compelled  to  pay  the  full  compensation, 
for  the  estate  actually  diminished  in  value,  this  is  an  element  in  com- 
puting the  compensation  which  he  is  to  receive  from  the  public.  In 
this  view,  it  becomes  unimportant,  in  settling  the  principle  we  are  now 
discussing,  whether  the  taking  for  public  use  diminishes  the  leased 
premises,  little  or  much,  in  quantity  or  in  value;  all  this  will  be 
taken  into  consideration  in  assessing  the  damages,  which  the  lessee 
may  sustain. 

But  it  was  contended  on  the  part  of  the  complainant,  and  author- 
ities were  cited  to  show,  that  where  a  covenant  is  to  do  any  act,  lawful 
at  the  time  the  covenant  is  made,  but  which  becomes  unlawful  after- 
wards, the  covenantor  is  excused  from  the  performance.  This  prin- 
ciple is  correct,  but  I  cannot  perceive  that  it  has  any  application  to 
the  present  case.  For  instance,  if  one  should  covenant  with  the 
owner  of  a  lot  of  land  to  build  a  warehouse  upon  it,  at  a  future  time, 
and  before  the  time  a  street  should  be  laid  over  it,  so  that  it  would 
become  unlawful  to  build  upon  it,  the  covenant  would  be  repealed; 
and  it  would  probably  follow,  that  the  corresponding  covenant  on 
the  other  side  to  pay  for  such  building  would  be  considered  re- 
pealed also.  But  nothing  renders  it  unlawful  for  the  tenant  in  the 
present  case,  to  use,  occupy  and  enjoy  the  leased  premises,  subject 
only  to  the  public  easement.  To  the  extent  of  the  property  not 
taken  he  has  still  the  beneficial  use;  if  its  value  is  diminished  by 
the  taking,  to  that  extent  he  has  his  compensation  from  the  public, 
and  thus  he  has  still  an  equivalent  for  his  rent  paid. 

Upon  these  grounds,  we  are  of  opinion,  that  the  lease  from  the 
complainant  to  Patterson  was  not  dissolved  by  the  act  of  taking  ])art 
of  the  leased  premises  to  widen  a  public  street;  that  Patterson, 
notwithstanding  such  taking,  continued  liable  to  pay  the  reserved  rent, 


322  PARADINE    V.    JANE  [CHAP.    VI 

during  the  term  which  remained  unexpired;  and  that  the  jury  should 
have  been  instructed  to  take  that  fact  into  consich-ration,  in  estimating 
the  damages  which  the  comphiinant  liad  sustained,  by  such  taking/ 


PAKADINE  V.  JANE 

Aleyn  -26.     1647. 

In  debt  the  plaintiff  declares  upon  a  lease  for  years  rendering  rent 
at  the  four  usual  feasts;  and  for  rent  behind  for  three  years,  ending 
at  the  Feast  of  the  Annunciation,  21  Car.,  brings  his  action:  The 
defendant  pleads,  that  a  certain  German  prince,  by  name  Prince 
Kupert,  an  alien  born,  enemy  to  the  king  and  kingdom,  hath  in- 
vaded the  realm  with  an  hostile  army  of  men;  and  w4th  the  same 
force  did  enter  upon  the  defendant's  possession,  and  him  expelled, 
and  held  out  of  possession  from  the  19  of  July,  18  Car.,  till  the 
Feast  of  the  Annunciation,  21  Car.,  whereby  he  could  not  take  the 
profits ;  whereupon  the  plaintiff  demurred,  and  the  plea  was  resolved 
insufficient. 

1.  Because  the  defendant  hath  not  answered  to  one  quarter's  rent. 

2.  He  hath  not  averred  that  the  army  were  all  aliens,  which  shall 
not  be  intended,  and  then  he  hath  his  remedy  against  them;  and 
Bacon  cited  33  H.  6,  1  e,  where  the  jailer  in  bar  of  an  escape 
pleaded,  that  alien  enemies  broke  the  prison,  &c.,  and  exception  taken 
to  it,  for  that  he  ought  to  show  of  what  country  they  were,  viz. 
Scots,  &c. 

3.  It  was  resolved,  That  the  matter  of  the  plea  was  insufficient;  for 
though  the  whole  army  had  been  alien  enemies,  yet  he  ought  to  pay 
his  rent.  And  this  difference  was  taken,  that  where  the  law  creates 
a  duty  or  charge,  and  the  party  is  disabled  to  perform  it  without 
any  default  in  him,  and  hath  no  remedy  over,  there  the  law  will  ex- 
cuse him.  As  in  the  case  of  waste,  if  a  house  be  destroyed  by  tempest, 
or  by  enemies,  the  lessee  is  excused.  Dyer,  33  a;  Inst.  53  d,  283  a; 
12  H.  4,  6.  So  of  an  escape.  Co.  4,  84  b;  33  H.  6,  1.  So  in  9  E.  3, 
16,  a  supersedeas  was  awarded  to  the  justices,  that  they  should  not 
proceed  in  a  cessavit  upon  a  cesser  during  the  war,  but  when  the 
party  by  his  own  contract  creates  a  duty  or  charge  upon  himself, 
he  is  bound  to  make  it  good,  if  he  may,  notwithstanding  any  accident 
by  inevitable  necessity,  because  he  might  have  provided  against  it 
by  his  contract.  And  therefore  if  the  lessee  covenants  to  repair  a 
house,  though  it  be  burned  by  lightning,  or  thrown  down  by  enemies, 

1  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 

Stuhbings  v.  Evanston,  136  111.  37;  Oli^on  Land  Co.  v.  Alki  Park  Co., 
63  Wash.  521  (semble)  accord.  Compare  Folf.9  v.  Huntley,  7  Wend.  (N.  Y.) 
210;  Schmid  v.  Thor^en.  89  Oreg.  575. 

Where  part  of  the  leased  premises  was  taken  bv  eminent  domain  the  rent 
was  apportioned  in  Commisffi oners  v.  .Johnson,  66  Miss.  248;  Biddle  v.  Hu.^s- 
man,  23  Mo.  597.  See  BaU'worc  v.  Lntmhr.  101  M<1.  621;  Dvhnm  v.  Mer- 
mod  Co.,  211  N.  Y.  364,  368;   Cuthbert  v.  Kuhn,  3  Whart.  (Pa.)   357. 


SECT.    Ill]  IZOJNT    V.    GORTON  323 

yet  he  ought  to  repair  it.  Dyer,  33  a;  40  E.  3,  6  h.  A^ow  the  rent 
is  a  duty  created  by  the  parties  upou  the  reservation,  and  had  there 
been  a  covenant  to  pay  it,  there  had  been  no  question  but  the  lessee 
must  have  made  it  good,  notwithstanding  the  interruption  by  enemies 
for  the  law  would  not  protect  him  beyond  his  own  agreement  no 
more  than  in  the  case  of  reparations.  This  reservation  then  being 
a  covenant  in  law,  and  whereupon  an  action  of  covenant  hath  been 
maintained  (as  Koll  said),  it  is  all  one  as  if  there  had  been  an 
actual  covenant.  Another  reason  was  added,  that  as  the  lessee  is  to 
have  the -advantage  of  casual  profits,  so  he  must  run  the  hazard  of 
casual  losses,  and  not  lay  the  whole  burden  of  them  upon  his  lessor ; 
and  Dyer  56,  6,  was  cited  for  this  purpose,  that  though  the  land  be 
surrounded  or  gained  by  the  sea,  or  made  barren  by  wild-fire,  yet 
the  lessor  shall  have  his  whole  rent:  And  judgment\vas  given  for 
the  plaintiff.^ 


IZO^  V.  GORTON  AND  ANOTHER 

5  Bing.  N.  C.  501.     1839. 

TiNDAL  C.  J.-  The  Defendants  in  this  case  being  tenants  from 
year  to  year  to  the  Plaintiff  of  the  upper  floors  of  a  warehouse 
at  a  rent  payable  quarterly,  a  fire  broke  out  in  the  Defendants'  rooms 
accidentally,  in  the  middle  of  a  quarter;  by  means  of  which  the 
floors  were  consumed,  and  the  Defendants'  rooms  so  damaged  that 
they  became  altogether  untenantable  until  the  Plaintiff  had  com- 
pleted their  repairs  after  about  seven  months  interval  from  the 
time  of  the  fire. 

Tw^o  questions  have  arisen  between  the  parties  upon  this  state 
of  facts ;  viz.,  first,  whether  the  Defendants  are  liable  to  the  payment 
of  any,  and  what  rent,  after  the  termination  of  the  quarter  Avhicli 
was  current  at  the  time  of  the  fire  (up  to  the  end  of  whieli  quarter 
the  rent  has  been  paid  into  Court)  ;  and  secondly,  if  liable  to  rent  at 
all,  wliother  it  can  be  recovered  in  an  action  for  use  and  occupation. 

1  Taverncr's  Case,  Dyer  56a,  was  this  "A  man  makes  a  lease  for  j^ears  of 
land  and  of  a  stock  of  sheep,  rendering  certain  rent,  and  all  the  sheep  died; 
it  was  asked  upon  the  indenture  of  Richards  le  Taverner,  Whether  this  rent 
might  be  apportioned?  And  some  were  of  opinion  that  it  should  not,  although 
it  is  the  act  of  God,  and  no  default  in  the  lessee  or  lessor;  as  if  the  sea  gain 
upon  part  of  the  land  leased,  or  part  is  burned  witli  wildfire,  which  is  the  act 
of  God,  the  rent  is  not  apportionable,  but  the.  entire  rent  shall  issue  out  of 
the  remainder:  otherwise  is  it  if  part  be  recovered  or  evicted  by  an  elder 
title,  then  it  is  apportionable.  And  of  this  opinion  were  Bromelev,  Portm.an, 
Hales,  Sergeants,  Lt'kk,  .Justice,  Bbooke,  and  several  of  the  Temple.  But 
Mauvynb,  Bkown,  Justices,  Townshend,  Griffith,  and  Foster  c  contra; 
but  all  thought  it  was  good  equity  and  reason  to  apportion  the  rent.  And 
afterwards  this  case  was  argued  in  the  readings  by  More,  in  the  following  Lent. 
And  it  seemed  to  him.  and  to  Brooke,  Hadley,  FoRTEsri'E,  and  Brown, 
Justices,  that  the  rent  should  be  apportioned,  because  there  is  no  def.uilt  in 
the  lessee."  2  The  statement  of  facts  is  omitted. 


324  IZON    V.    GORTON  [CHAP,   VI 

Upon  the  first  point,  we  can  see  no  legal  ground  for  holding  that 
the  relation  of  landlord  and  tenant  between  these  parties  was  deter- 
mined by  the  consumption  of  the  premises  by  fire.  If  there  had  been 
an  agreement  in  writing  between  the  parties  for  a  term  of  years, 
no  question  could  have  been  made,  but  that  the  term  of  years  still 
existed;  and  a  tenancy  from  year  to  year,  until  it  is  determined  by 
a  notice  to  quit,  is,  as  to  its  legal  character  and  consequences,  the 
same  as  a  term  for  years :  upon  the  facts  stated  in  this  case  it  must 
stand  admitted,  that  the  tenancy  was  not  determined  by  any  regu- 
lar notice  to  quit:  and  the  case  of  Baker  v.  Holtpzaffell  is  a  direct 
authority,  that  a  tenancy  for  a  term,  under  an  agreement,  not  being 
an  instrument  under  seal,  is  not  determined  by  a  fire  during  the  con- 
tinuance of  the  tenancy.  We  think,  therefore, -the  Defendants  con- 
tinued tenants  to  the  Plaintiff  until  such  tenancy  was  put  an  end 
to  by  the  Plaintiff's  letting  of  the  premises  to  a  stranger,  viz.  at 
Lady-day  1836,  and  that  they  are  liable  to  rent  up  to  that  day. 

The  remaining  question  is,  whether  the  Defendants  are  liable  in 
this  form  of  action.  The  statute  11  G  2.  c.  19.  enables  landlords 
"  to  recover  a  reasonable  satisfaction  for  lands,  kc.  held  or  occu- 
pied by  the  defendant  in  an  action  on  the  case,  for  the  use  and  occu- 
pation of  what  was  so  held  or  enjoyed;"  from  which  it  seems  to 
follow,  that  if  there  is  an  actual  holding,  and  the  power  to  occupy 
or  enjoy  is  given  by  the  landlord  to  the  tenant,  so  far  as  depends 
on  the  landlord,  the  action  is  maintainable.  Here,  nothing  was  done 
by  the  landlord  to  take  away  the  continuance  of  the  occupation  or 
enjoyment  by  the  tenant :  for  it  would,  as  it  appears  to  us,  be  un- 
reasonable to  hold  that  the  landlord's  act  in  replacing  the  floor, 
and  repairing  the  walls  of  the  Defendants'  rooms,  amounted  to  an 
eviction :  and  though  in  the  case  above  cited,  where  it  was  held  that 
the  action  for  use  and  occupation  would  lie,  some  stress  was  placed 
by  the  Court  upon  the  fact,  that  the  land  was  still  in  existence  and 
there  was  no  offer  on  the  part  of  the  Defendant  to  give  it  ut)  ;  so  it 
might  be  argued  in  the  present  case;  the  space  enclosed  by  the  four 
Avails,  still  continued  as  marked  out  by  them.  If  the  landlord  re- 
builds, and  the  tenant  chooses  to  re-enter  and  to  continue  his  occupa- 
tion of  the  new  building,  there  seems  nothing  to  prevent  him,  as  no 
notice  to  quit  had  been  given  on  either  side;  and  if  so,  the  obligation 
of  each  of  the  parties  must  be  reciprocal,  and  the  tenant  must  make 
satisfaction  for  the  rent.  The  cases  referred  to  in  the  argument,  in 
which  the  tenant  has  been  allowed  to  with'^lmw  bimsolf  from  the 
tenancy,  and  to  refuse  payment  of  rent,  will  be  found  to  be  cases 
where  there  has  been  either  error  or  fraudulent  misdescription  of  the 
premises  which  were  the  subject  of  the  letting,  or  where  the  premises 
have  been  found  to  be  uninhabitable  by  the  wrongful  act  or  default 
of  the  landlord  himself:  npither  of  which  circumstances  occur  in  this 
case. 

Upon  the  whole,  we  think  the  Plaintiff  is  intitled  to  judgment 
for  1097.  10s.  Judgment  for  Plaintiff. 


SECT.    Ill]  WOMACK    V.    MCQUARRY  325 

WOMACK  V.  McQUARRY 
28  Ind.  103.     1867. 

Frazeb,  J.  The  appellant  sued  the  appellee  to  recover  rents. 
The  facts  were  that  the  appellant,  on.  the  7th  of  March,  1864,  owned 
a  saw-mill  and  a  woolen  factory.  The  two  buildings  were  separate, 
but  side  by  side.  The  machinery  of  both  Avas  propelled  by  water 
drawn  from  the  pool  of  one  dam,  but  each  had  its  separate  fore- 
bay  and  water  wheel.  On  that  day,  the  saAV-mill  and  one  room  of 
the  factory  building  (for  a  carpenter  shop,)  which  had  an  entrance 
from  the  saw-mill,  were  leased  to  the  appellee  for  three  years,  the 
appellee  agreeing  to  pay  quarterly  therefor  the  sum  of  three  hun- 
dred dollars  per  annum.  The  appellee  took  possession  of  the  leased 
property  on  the  day  of  the  contract ;  and  while  in  possession,  on  the 
9th  of  June  following,  both  buildings,  with  their  contents,  except  the 
water  wheels,  basements  and  such  parts  as  were  protected  by  the 
water,  were  consumed  by  a  fire,  originating  in  the  carpenter  shop. 
In  December  following,  Green  &  Co.,  real  estate  agents,  caused  an 
advertisement  to  bo  published  in  a  newspaper  offering  the  property 
for  sale.  Green  &  Co.  were  authorized  by  the  appellant  to  sell  the 
property,  only  subject  to  the  appellee's  lease,  and  the  appellant  had 
no  part  in  framing  or  piiblishing  the  advertisement.  The  property, 
however,  was  not  sold.  After  the  conflagration,  neither  jsarty  exer- 
cised  any  manual   control   of   the   property  leased. 

The  question  presented  is,  whether,  under  the  circumstances,  the 
plaintiff  can  recover  rent  for  the  premises  after  the  destruction  of 
the  buildings  by  fire?  The  general  doctrine  that  in  the  absence 
of  a  contract  to  rebuild,  a  tenant  agreeing  expressly  to  pay  rent  is 
not  relieved  of  that  obligation  by  the  accidental  destruction  of 
the  building  leased,  unless  it  is  so  provided  in  the  contract,  is  so 
"well  established  and  understood  that  it  is  needless  to  refer  to  the 
authorities  supporting  it.  There  are,  however,  some  comparatively 
recent  cases  in  which  an  exception  to  this  rule  has  been  held  to 
exist.  Winion  v.  Cornish,  5  Ohio  477;  Kerr  v.  Merchani's  Exchange 
Co.,  3  Ed.  Ch.  315;  Stoclwell  v.  Hunter,  11  Met.  448;  Graves  v. 
Bcrdan,  26  N".  Y.  498.  This  exception  applies  only  to  cases  where 
the  demise  is  of  part  of  an  entire  building,  as  a  cellar  or  upper  room; 
and  it  is  founded  upon  the  idea  that  in  such  cases  it  is  not  the  in- 
tention of  the  lease  to  grant  any  interest  in  the  land,  save  for  the 
single  purpose  of  the  enjoyment  of  the  apartment  demised,  and  that 
when  that  enjoyment  becomes  impossible,  by  reason  of  the  destruc- 
tion of  the  building,  there  remains  nothing  upon  which  the  demise 
can  operate.  The  leading  one  of  those  cases,  ^Yinion  v.  Cornish,  pre- 
sented strong  reasons  of  justice  and  policv  for  the  ruling;  the  les.see 
of  a  lower  room,  cellar,  or  part  of  a  building  of  several  stories,  in 
that  case,  interposing  to  prevent  the  erection  of  a  new  structure  by 


326  WAKE    V.    HOBBS  [CHAP.   VI 

the  landlord.  Had  he  succeeded,  a  valnalde  lot  in  Cincinnati  must, 
in  consideration  of  a  yearly  rental,  prohahly  hearing  no  reasonable 
proportion  to  its  value,  have  remained  for  over  two  years  unim- 
proved. That  no  such  consequence  could  have  been  intended  by  the 
parties,  it  is  not  easy  to  controvert.  We  are  satisfied  to  follow  the 
doctrine  of  these  cases.  It  is,  in  the  case  before  us,  applicable 
to  the  carpenter  shop,  but  not  to  the  saw-mill.  It  results  that  the 
lessee  must  pay  rent  for  the  latter.  As  the  contract  was  entire, 
there  must  be  an  abatement  of  the  rent  on  account  of  the  destruc- 
tion of  the  factory.  Justice  can  only  be  done  in  the  case  by  appor- 
tioning the  r^t,  as  in  cases  where  a  part  of  the  premises  is  lost  to 
the  tenant  by  the  act  of  God,  or  he  is  evicted  of  part  by  title  para- 
mount.    Taylor's  Landlord  and  Tenant,  §§  385,  386. 

The  judgment   is  reversed,  with  costs,   and  the  cause  remanded 
for  a  new  trial.^ 


WAEE  KWD  AN^OTHEK  v.  HOBBS 
222  Mass.  327.     1916. 

Crosby,  J.  This  is  an  action  brought  to  recover  a  payment  of 
$600  made  on  March  14,  1913,  by  the  plaintiffs  as  lessees  under 
a  written  lease  from  the  defendant  of  "  the  Hotel  Crowninshield 
with  Annex  and  maids'  cottage  and  grounds  at  Clifton,  in  the  Town 
of  Marblehead,  Massachusetts,"  together  with  certain  personal 
property  therein  described.  The  term  of  the  lease  was  for  two 
years  and  ten  months  from  the  second  day  of  January,  1911,  at  a 
rental  of  $2,200  for  the  first  ten  months  and  $2,400  for  each  of  the 
two  following  years,  called  in  the  lease  the  "  second  "  and  "  third  " 
years.  The  lease  provided  that  the  rent  for  the  third  year  should 
be  paid  in  four  instalments  of  $600  each  on  the  following  days 
respectively:  December  1,  1912;  June  1,  1913;  July  1,  1913;  and 
August  1,  1913;  and  at  the  rate  of  $2,400  per  annum  for  such 
further  time  as  the  lessees  occupied  the  premises  after  October 
31,  1913.  The  instalment  of  rent  due  on  December  1,  1912,  was 
paid  on  March  14,  1913.  The  buildings  on  the  premises  were 
totally  destroyed  by  fire  on  April  3,  1913;  and  o^>^  Ann!  ^(^.  1913. 
the  lessor  elected  to  terminate  the  lease  and  notified  the  plaintiffs 
to  that  effect. 

There  was  evidence  to  show  that  the  leased  premises  were  used 

1  See  Posit  v.  Brown,  142  Tenn.  304. 

The  authorities  are  collected  in  6  Harv.  Law  Rev.  12.'i-130:  2  Tiffanv. 
Real  Prop..  2d  ed.,  pp.  1497-1499;  2  Williston.  Contracts,  §§  944,  945.  For 
statutes,  see  1  Tiffany,  Landl.  and  Ten.,  pp.  1211  et  sea. 

On  recovery  of  rent  payable  in  advance  for  premises  subspquentlv  de- 
stroyed by  accident,  see  Harvey  v.  Weisbanyn,  159  Cal.  265:  Carlnn  Elevator 
Co.  V.  Klahn,  43  S.  D.  76;  Porter  v.  Tull,  6  Wash.  408;  33  L.  R.  A.  N.  S. 
540  note. 


SECT.    Ill]  WARE   V.    HOBBS  327 

by  the  lessees  as  a  summer  hotel;  that  the  hotel  had  no  heating 
system  therein,  and  that  the  buildings  could  not  be  used  as  a  hotel 
during  the  winter  months.  The  judge  of  the  Superior  Com't, 
Fox,  J.,  before  whom  the  case  was  tried,  ordered  a  verdict  for  the 
defendant  subject  to  the  plaintiffs'  exceptions,  and  reported  the 
case  with  the  stipulation  that,  if  "upon  the  competent  and  admis- 
sible evidence,  and  upon  the  admitted  facts  .  .  .  the  plaintiffs  had 
a  right  to  go  to  the  jury,  then  judgment  is  to  be  entered  forthwith 
for  the  plaintiffs  for  six  hundred  dollars  ($600)  and  interest  from 
the  date  of  the  writ;  otherwise  judgment  for  the  defendant  is  to 
be  entered  upon  the  verdict." 

At  common  law  a  lessee  of  premises  which  are  accidentally  de- 
stroyed after  the  making  of  the  lease  cannot  be  relieved  against  an 
express  covenant  to  pay  rent  in  the  absence  of  a  stipulation  to  that 
effect.  Kramer  v.  Cook,  7  Gray,  550.  In  some  States  this  rule 
has  been  modified  by  statute  so  that  the  tenant  is  relieved  from  the 
payment  of  rent  or  is  allowed  a  reduction  thereof  when  the  premises 
are  accidentally  destroyed  without  his  fault. ^  The  lease  in  the  case 
at  bar  contains  the  usual  proviso  that  if  the  buildings  on  the  prem- 
ises or  any  part  thereof  shall  be  damaged  by  fire  or  other  unavoid- 
able casualty  so  as  to  be  unfit  for  use  and  occupation,  then  "  the 
rent  hereinbefore  reserved,  or  a  just  and  proportional  part  thereof, 
according  to  the  nature  and  extent  of  the  injury  sustained,  shall  be 
abated  until  the  said  premises  shall  have  been  duly  repaired  and 
restored  by  the  lessor,"  or,  in  case  the  biuldings  are  destroyed,  then 
at  liis  election  the  lessor  may  terminate  the  lease. 

The  nuestion  is :  In  what  manner  is  "  a  just  and  proportional 
part  "  of  the  rent  reserved  to  be  abated  in  accordance  with  this  pro- 
vision of  the  lease?  The  plaintiffs  contend  that  the  payment  due 
December  1  and  made  on  March  14  Avas  so  made  before  they  had 
had  any  valuable  use  of  the  premises  and  was  in  effect  a  payment  in 
advance  of  the  summer  season  and  before  the  hotel  would  yield 
any  income  to  the  lessees ;  and  that  the  words  "  a  just  and  propor- 
tional part  thereof"  do  not  refer  to  the  portion  of  the  term  which 
had  exnired  before  the  buildings  were  destroyed,  but  that  in  de- 
termininc:  what  is  a  just  and  proportional  part  of  the  rent  to  be 
abated  the  fnct  that  the  lessees  could  receive  no  income  or  benefit 
from  the  hotel  except  during  the  summer  months  is  to  be  considered, 
and  for  that  reason  the  payment  of  the  rent  due  in  December  is  to 
be  treated  in  substance  as  an  advance  payment.  It  is  settled  that 
under  such  a  provision  in  a  lease  a  just  and  proportional  part  of 
a  payment  made  in  advance  may  be  recovered  back  in  case  of  the 
destruction  of  the  premises  during  the  term.  In  Blcli  v.  Smith, 
121  Mass.  82S.  the  tenant,  for  throe  years  in  advance,  had  paid  the 
rent  for  a  building  leased  by  him ;  tlio  lease  contained  a  provision 
similar  to  that  in  the  case  at  bar;  the  building  was  destroyed  by 
1  See  note  to  preceding  case. 


328  WARE    V.    HOBBS  [CHAP.   VI 

fire  before  the  term  had  expired;  and  the  lessor  elected  not  to  re- 
build. It  was  held  that  the  lessee  was  entitled  to  recover  back  a 
proportional  part  of  the  rent  so  paid  in  advance. 

We  are  of  opinion  that  the  words  "  just  and  proportional  "  refer 
to  the  period  of  occupancy  and  not  to  the  value  of  the  use  to  the 
tenant,  and  that  the  rent  to  be  abated  is  to  be  ascertained  according 
to  the  portion  of  the  period  of  .possession  which  has  expired;  and 
the  fact  that  the  lessees  could  not  have  carried  on  the  business  of 
keeping  a  summer  hotel  when  the  December  instalment  of  rent 
became  due  and  was  paid  is  an  immaterial  circumstance.  The  proper 
interpretation  of  the  contract  is  that  when  the  lessor  exercises  his 
election  to  terminate  the  lease,  then  there  is-  to  be  a  just  and  pro- 
portional abatement  of  rent  for  the  unexpired  term  because  of  the 
inability  of  the  tenant  longer  to  occupy  the  premises.  See  R.  L.  c. 
129,  §§  8,  9;  Weston  v.  Weston,  102  Mass.  514;  Faxon  v.  Jo7ies, 
176  Mass.  138. 

When  the  fire  occurred  on  April  3,  1913,  the  first  five  months 
of  the  third  year  under  the  lease  had  expired,  and  when  the  instal- 
ment of  rent  of  $600  due  on  December  1,  1912,  was  paid  on  March 
14,  1913,  the  lessees  had  been  in  possession  and  occupancy  of  the 
premises  under  the  third  year  of  the  lease  from  November  2,  1912, 
and  continued  in  such  possession  until  April  3,  1913,  a  period  of  five 
months,  which,  at  a  rental  at  the  rate  of  $2,400  a  year  as  provided 
by  the  terms  of  the  lease,  would  equal  $200  a  -month  and  would 
amoimt  to  $1,000  for  the  time  actually  occupied  by  them  during 
the  last  year  of  the  term. 

In  view  of  these  facts  it  cannot  be  found  that  the  rent  paid  on 
March  14,  1913,  was  paid  in  advance,  but  it  is  to  be  considered  as 
having  been  paid  under  the  terms  of  the  lease  on  account  of  the 
occupancy  of  the  premises  from  November  2,  1912,  to  the  date  of 
the  fire.  The  rent  under  the  lease  was  not  made  payable  at  regular 
intervals,  but,  with  the  exception  of  the  December  payment,  be- 
came due  on  the  first  days  of  June,  July  and  August.  Still  this 
circumstance  cannot  affect  the  interpretation  which  we  have  put  upon 
the  language  of  the  lease.  The  dates  fixed  upon  for  the  payment  of 
the  rent  during  the  summer  months  apparently  were  for  the  con- 
venience of  the  lessees  who  would  be  expected  to  have  an  income 
from  the  hotel  business  during  those  months. 

In  accordance  with  the  terms  of  the  report  the  entry  must  be 
Judgment  for  the  defendant  on  the  verdict} 

^  See  Cary  v.  Whiting,  118  Mass.  363;  Richmond  Ice  Co.  v.  Crystal  Ice 
Co.,  103  Va.  465. 


SECT.   Ill]  CIBEL   AND   HILL's    CASE  329 

CIBEL  AND  HILL'S  CASE 

1  Leon.  110.     1588. 

A  LEASE  was  made  of  a  certain  house  and  land  rendering  rent, 
and  another  sum,  Nomine  pamce;  and  for  the  Nomine  poence  the 
lessor  brought  an  action  of  debt.  The  lessee  pleaded,  that  the  lessor 
had  entered  into  parcel  of  the  land  demised,  upon  which  they  were 
at  issue,  and  found  for  the  plaintiff;  and  now  the  lessor  brought 
debt  for  the  rent  reserved  upon  the  same  lease;  to  Avhich  the  de- 
fendant pleaded,  ut  supra,  soil,  an  entry  into  parcel  of  the  land  de- 
mised :  And  issue  was  joined  upon  it ;  And  one  of  the  jury  was 
challenged,  and  withdrawn,  because  he  was  one  of  the  former  jury : 
And  the  issue  now  was,  whether  the  said  Cibel,  the  lessor,  expulit 
et  amovit  et  adhuc  extra  tenet,  the  said  Hills.  And  to  prove  the 
same,  it  was  given  in  evidence  on  the  defendant's  part,  that  upon  the 
land  demised  there  was  a  brick-kiln,  and  thereupon  a  little  small 
cottage,  and  that  the  lessor  entered,  and  went  to  the  said  cottage 
and  took  some  of  the  bricks  and  untiled  the  said  cottage :  But  of  the 
other  it  was  said,  that  the  lessor  had  reserved  to  himself  the  bricks 
and  tiles  aforesaid  which  in  truth  were  there  ready  made  at  the 
time  of  the  lease  made,  and  that  he  did  not  untile  the  brick-kiln 
liouse,  but  that  it  fell  by  tempest,  and  so  -the  plaintiff  did  nothing 
but  came  upon  the  land  to  carry  away  his  own  goods :  And  also  he 
had  used  the  said  bricks  and  tiles  upon  the  reparation  of  the  house. 
And  as  to  the  extra  tenet,  which  is  parcel  of  the  issue,  the  lessor 
did  not  continue  upon  the  land,  but  went  off  it,  and  relinquished 
the  possession :  But  as  to  this  last  point,  it  seemed  to  the  court,  that 
it  is  not  material  if  the  plaintiff  continued  his  possession  there  or 
not,  for  if  he  once  doth  anything  which  amounts  to  an  entry,  al- 
though that  he  depart  presently,  yet  the  possession  is  in  him  suffi- 
cient to  suspend  the  rent,  and  he  shall  be  said,  extra  tenere  the 
defendant  the  lessee,  until  he  hath  done  an  act  which  doth  amount 
to  a  re-entry.  And  afterwards  to  prove  a  re-entry,  it  was  given  in 
evidence  on  the  plaintiff's  part,  that  the  defendant  put  in  his  cattle 
in  the  field  where  the  brick-kiln  was,  and  that  the  cattle  did  estray 
into  the  place  where  the  defendant  had  supposed  that  the  plaintiff 
had  entered.  And  by  Anderson,  Justice  the  same  is  not  any  re-entry 
to  revive  the  rent,  because  they  were  not  put  into  the  same  place  by 
the  lessee  himself,  but  went  there  of  their  own  accord.  And  such  also 
was  the  opinion  of  Justice  Periam.^ 

1  The  landlord  is  entitled  to  rent  payable  in  advance  even  though  he 
later  evicts.  Hunter  v.  Reilci/,  43  N.  J.  L.  480.  See  Gilcfi  v  Comstock, 
4  N.  Y.  270;  auqd  v.  Imna^,  21  App.  Div.  (N.  Y.)  rm,  afT'd.  in  162  N,  Y. 
636. 

Contra.  The  Richmond  v.  Cake,  1  App.  D.  C.  447;  .S/o.^^<;  v.  Brock  wan,  171 
111.  App.  465;  Noycs  v.  Anden^on.  1  Ducr.  (N.  Y .)  342. 

Compare  Hall  v.  Middleby,  197  Mass.  485;  St.  Louts  Co.  v.  Stanto7i,  172 
Mo.  App.  40. 


330  HUNT    V.    COPE  [chap.   VI 

HUNT  V.  COPE 

Cowp.  242.     1775. 

Error  from  a  judgment  of  the  court  of  King's  Bench,  in  Ireland, 
in  an  action  of  replevin,  brought  by  the  plaintiff,  now  defendant  in 
error,  for  taking  certain  goods  of  the  said  Henry  Cope,  out  of  his 
dwelling-house,    and    detaining   them,   «fec. 

The  defendant,  the  now  plaintiff  in  error,  avowed  the  taking  for 
rent  arrear  due  by  the  said  Hunt  to  the  said  defendant,  for  certain 
premises  in  the  avowry  mentioned. 

The  plaintiff  pleaded  1st,  That  there  was  not  any  rent  due  to 
the  defendant  out  of  the  premises,  at  the  time  of  the  taking,  &c. 
upon  which  issue  was  joined.  2dly,  That  long  before  the  taking  of 
the  goods,  to  wit  on  the  1st  of  April  1770,  the  defendant  with  force 
and  arms  unjustly  and  unlawfully  entered  upon  the  garden  part 
of  the  messuage  or  tenement  in  the  plaintiff's  possession,  and  did 
then  and  there  with  like  force  and  arms  unjustly  and  unlawfully 
hreah  and  pull  down  the  roof  and  ceiling  of  a  summer-house,  part 
of  the  said  premises,  and  tore  up  the  benches  therein,  by  means 
whereof  the  plaintiff  had  been  deprived  of  the  use  of  the  summer- 
house,  from  the  said  1st  of  April,  1770,  until  the  day  of  taking  of 
the   said   goods,   <Src. 

To  this  plea  the  defendant  demurred,  and  the  plaintiff  joined 
in  demurrer. 

The  Court  of  King's  Bench  in  Ireland,  gave  judgment  upon  the 
demurrer  for  the  plaintiff,  whereupon  the  defendant  brought  this 
writ  of  error  to  reverse  the  judgment,  and  assigned  the  general  errors, 
and  the  plaintiff  joined  in  error. 

Lord  Mansfield.  The  whole  question  in  this  case  turns  upon  the 
pleading;  for  the  rule  of  law  is  clear,  namely,  that  to  occasion  a 
suspension  of  the  rent,  there  must  be  an  eviction  or  expulsion  of 
the  lessee.  But  here  the  plea  states  merely  a  trespass,  and  no 
eviction,  therefore  the  plaintiff  must  recover. 

Aston  Justice.  I  am  clearly  of  the  same  opinion.  The  case  in 
Cro.  El.  341.  never  received  a  final  determination;  and  even  upon 
the  mooting  of  it  Fenner  and  Clench  doubted.  All  the  cases  in  the 
books  suppose  the  lessee  to  be  put  out  of  possession ;  therefore  merely 
saying  that  he  was  deprived  of  the  enjoyment  of  the  premises  is 
not  sufficient,  but  he  must  plead  that  he  was  evicted.  1  Lord 
Raym.  370.     Clayton  34.     Hoh.  326.     Reynolds  versus  Buckle. 

Lord  Mansfield.  The  defendant  certainly  should  have  pleaded 
eviction,  and  then  the  facts  that  are  now  stated  might  have  been 
sufficient  for  the  jury  to  have  found  a  verdict  in  his  favour. 

Mr.  Justice  "Willes  and  Mr.  Justice  Ashhurst  were  of  the  same 
opinion.  Judgment  reversed.^ 

1  Roper  V.  Lloijd,  T.  Jones  148,  accord.  See  Bennett  v.  Bittle.  4  Rawle 
(Pa.)  339;  1  Tiffany,  Real  Prop.,  2d  ed.,  pp.  201-203.  Compare  Hoeveler  v. 
Fleming,  91   Pa.  322. 


SECT.    Ill]  CHRISTOPHER    V.   AUSTIN  331 


SMITH  V.  KALEIGH 
3  Camp.  513.     1814. 

Assumpsit  for  the  use  and  occupation  of  a  house  and  garden. 
Plea,  the  general  issue. 

It  appeared,  that  after  the  defendant  had  agreed  to  take  the 
premises  at  an  entire  rent,  and  possession  had  been  delivered  to  him, 
the  plaintiff  railed  off  a  part  of  the  garden,  and  built  a  privy  upon 
it,  for  the  use  of  a  number  of  his  other  tenants.  The  defendant 
thereupon  returned  the  keys  to  him. 

Lord  Ellenborough  ruled,  that  this  amounted  to  an  eviction  from 
part  of  the  demised  premises;  Avhich,  the  taking  being  single,  and 
the  rent  entire,  he  considered  a  complete  answer  to  the  action. 

Plaintiff  nonsuited} 


CHRISTOPHEE,  EXECUTOE  v.  AUSTIJST 
11  N.  Y.  216.     1854. 

Appeal  from  a  judgment  of  the  New  York  Common  Pleas.  The 
action  was  brought  by  Thomas  Vermilya  in  that  court  to  recover 
for  the  use  and  occupation  of  a  dwelling-house  and  three  lots  of 
ground  from  the  1st  of  May,  1847,  to  the  1st  of  May,  1848.  The 
cause  was  tried  before  Judge  Woodruff,  without  a  jury.  He  found 
"  that  the  defendant,  by  agreement  not  under  seal,  hired  from  the 
plaintiff  the  demised  premises,  from  the  1st  of  May,  1847,  to  the 
1st  of  May,  1848,  at  the  rent  of  two  hundred  dollars,  payable  quar- 
terly, and  entered  into  the  possession  thereof  under  the  agreement; 
that  afterwards,  and  before  any  rent  became  payable,  the  plaintiff 
entered  upon  the  demised  promises  and  evicted  the  defendant  from 
a  part  thereof,  which  eviction  continued  during  the  whole  residue 
of  the  term;  that  notwithstanding  such  eviction,  the  defendant  volun- 
tarily continued  to  enjoy,  use  and  occupy  the  residue  of  the  prem- 
ises until  the  expiration  of  the  term  on  the  first  of  May,  1848;  that 
after  the  first  of  February,  1848,  the  plaintiff  prosecuted  the  defend- 
ant in  an  action  of  assumpsit  upon  the  agreement,  to  recover  the 
three  quarters'  rent,  due  on  that  day;  in  such  action  the  defendant 
interposed  as  a  defence  the  eviction  of  him  by  the  plaintiif  from  a 

^  This  case  was  recognized  by  Dallas,  J.,  in  Stoker  v.  Cooper,  Worcester 
Lent  Assizes,  1814,  in  which  the  rule  was  laid  down,  that  after  eviction 
from  part,  the  landlord  cannot  recover  ui)on  the  original  contract,  and  the 
tenant,  by  giving  up  possession  of  the  residue,  is  entirely  di.-^rhargeci ;  but 
that  if  the  tenant,  after  the  eviction,  continues  in  pos.-jeission  of  the  residue, 
he  may  be  liable  upon  a  quantum  vieriiit.  Vide  Dahton  v.  Rcere,  Ld. 
Raym.  77;  Chm.s  Case,  10  Rep.  128.  — Rep. 

See  Tomlinson  v.  Day,  2  Brod.  A  B.  680;  s    c.  5  INIoore,  558. 


332  CHRISTOPHER    V.    AUSTIN  [CHAP.   VI 

part  of  the  demised  premises,  and  upon  trial  of  this  issue  a  verdict 
was  rendered  in  favor  of  the  defendant,  upon  which  judgment  was 
entered."  The  judge  decided  as  matter  of  law  upon  said  facts,  that 
such  wrongful  eviction  of  the  defendant  from  a  part  of  the  premises, 
suspended  the  rent,  and  that  the  plaintiff  could  not  recover  for  the 
use  and  enjoyment  of  the  residue  of  the  premises  while  such  evic- 
tion continued;  and  therefore,  whether  the  record  and  judgment  in 
the  former  action  were  or  not  a  bar  to  a  recovery  for  the  use  and 
occupation  from  May  1st,  1847,  to  February  1st,  1848,  that  the 
eviction  having  continued  during  the  whole  term,  this  action  for  a 
compensation  for  the  use  and  occupation  of  the  residue  of  the  prem- 
ises, could  not  be  sustained;  and  directed  judgment  in  favor  of  the 
defendant.  On  an  appeal  by  the  plaintiff,  the  Court  of  Common 
Pleas,  at  General  Term,  affirmed  the  judgment.  The  plaintiff 
appealed  to  this  court. 

During  the  pendency  of  the  suit,  Vermilya,  the  plaintiff,  died, 
and  the  suit  was  continued  in  the  name  of  Christopher,  his  executor. 

Parker,  J.  The  judge  found  the  fact  that  after  the  leasing  of 
the  premises  for  one  year,  viz.,  from  the  first  day  of  May,  1847,  to 
the  1st  of  May,  1848,  by  a  written  lease,  not  under  seal,  at  a  rent 
of  $200,  payable  quarterly,  and  after  the  defendant  had  entered 
into  possession  under  such  agreement,  before  any  rent  had  become 
payable,  the  plaintiff  entered  upon  the  premises  and  evicted  the  said 
tenant  from  a  part  thereof,  which  eviction  continued  during  the 
whole  residue  of  the  term  for  the  hiring. 

It  is  contended  by  the  plaintiff's  counsel,  that  although  such  an 
eviction  would  be  a  bar  to  an  action  on  the  agreement  to  pay  rent, 
yet  that  it  is  no  bar  to  an  action  under  the  Statute  to  recover  a 
reasonable  sum  for  the  use  and  occupation,  if  the  tenant  continue 
to  occupy  a  portion  of  the  premises  after  such  eviction  from  a  part. 
There  is  no  reason  for  such  a  distinction,  nor  can  it  be  sustained  by 
authority.  The  rule  is,  that  if  the  landlord  enter  wrongfully  upon 
or  prevent  the  tenant  from  the  enjoyment  of  a  part  of  the  demised 
premises,  the  whole  rent  is  suspended  till  the  possession  is  restored. 
The  Fitchhurg  Corporation  v.  Melven,  15  Mass.  R.  268.  ISTelson, 
C.  J.,  said  in  Lawrence  v,  French,  25  ,Wend.  445,  "his  (the  land- 
lord's) title  is  founded  upon  this,  that  the  land  leased  is  enjoyed 
by  the  tenant  during  the  term :  if,  therefore,  he  be  deprived  of  it, 
the  obligation  to  pay  ceases."  And  Spencer,  Senator,  in  Dyett  v. 
Pendleton,  8  Cowen,  731,  states  as  the  reason  for  the  rule,  "  as  to 
the  part  retained,  this  is  deemed  such  a  disturbance,  such  an  injury 
to  its  beneficial  enjoyment,  such  a  diminution  of  the  consideration 
upon  which  the  contract  is  founded,  that  the  law  refuses  its  aid  to 
coerce  the  payment  of  any  rent."  It  would  be  a  palpable  evasion  of 
the  rule  and  of  the  penalty  the  law  imposes  upon  the  landlord  for 
a  wrongful  eviction,  to  hold  that  he  may  recover  for  use  and  occupa- 
tion on  a  quantum  meruit,  when  he  is  not  permitted  to  recover  on 
the  agreement  itself. 


SECT.    Ill]  CHRISTOPHER    V.    AUSTIN  333 

The  exception  to  the  rule  is  where  a  part  is  recovered  by  title  para- 
mount to  the  lessor's;  for  in  that  case  he  is  not  so  far  considered 
in  fault,  as  that  it  should  deprive  him  of  a  return  for  the  part  re- 
maining. Lawrence  v.  French,  25  Wend.  445;  8  Bac.  Abr.  514,  tit. 
Kent,  L. ;  Gilbert  on  Rents,  173.  And  where  the  tenant  enters,  but 
is  prevented  from  obtaining  the  whole  of  the  premises,  by  a  person 
holding  a  part  under  a  prior  lease  executed  by  the  landlord,  it  has 
been  placed  upon  the  same  footing  as  an  eviction  by  title  para- 
mount, and  the  landlord  has  been  permitted  to  recover  for  use  and 
occupation  on  a  quanfurn  meruit.  Lawrence  v.  French,  25  "Wend. 
443;  Luclwell  v.  Newman,  6  Term  R.  458;  TomJinson  v.  Day,  2  Brod. 
&  Bing.  680. 

I  know  the  rule  has  been  laid  down  in  some  of  the  elementary 
books,  Story  on  Cont.  §  657;  Taylor,  Lan.  &  Ten.  443,  to  be  that 
when  the  rent  is  entire  and  the  landlord  evicts  the  tenant  during 
his  term  out  of  part  of  the  premises,  he  may  abandon  the  residue, 
and  is  not  chargeable  for  the  occupation  of  any  part;  but  that  if 
the  tenant  still  continue  to  occupy  the  residue,  he  is  chargeable 
upon  a  quantum^  meruit.  The  rule  has  been  thus  stated  on  the 
authority  of  two  nisi  prius  cases,  viz. :  Smith  v.  Raleigh,  3  Camp. 
513,  and  Stokes  v.  Cooper,  a  ease  not  reported  but  referred  to  in  a 
note  to  the  same  case,  as  having  been  decided  by  Dallas,  J.,  at  the 
"Worcester  Lent  Assizes.  In  Smith  v.  Raleigh  it  appeared  the  tenant 
abandoned  the  premises  after  being  evicted  from  a  part,  but  the 
decision  was  not  put  by  Lord  Ellenborough  on  that  ground,  and  I 
think  the  tenant  would  equally  have  been  entitled  to  judgment,  if  he 
had  remained  in  possession  of  the  residue.  The  only  case  that  can 
be  found  favoring  the  idea  that  a  tenant  who  remains  in  possession 
of  the  residue  during  the  term,  after  an  eviction  from  part,  is 
chargeable,  is  that  of  StoJces  v.  Cooper,  above  cited.  And  that  is 
not  sufficiently  reported  to  enable  us  to  know  Avhat  were  the  facts 
of  the  case;  and  if  it  were  so,  it  would  be  entitled  only  to  the  weight 
due  to  a  hastily  made  decision  at  the  circuit.  If  the  decision  Avas 
what  it  is  claimed  to  have  been,  it  is  at  war  with  the  rule  of  law 
as  it  has  been  generally  stated  in  well-considered  cases.  The  con- 
sequence of  an  eviction  from  part  is  not  merely  a  discharge  of  the 
tenant  from  the  rent,  provided  he  abandons  the  residue,  but  it  is 
a  discharge  of  the  tenant  from  any  rent  or  liability  for  the  occu- 
pation of  the  residue  during  the  term  of  hiring.  In  Dyett  v.  Pendle- 
ton, 8  Cowen^  731,  Spencer,  Senator,  said:  "This  distinction,  which 
is  as  perfectly  well  settled  as  any  to  be  found  in  the  books,  estab- 
li'^hes  the  great  principle  that  a  tenant  shall  not  be  required  to  pay 
rent,  even  for  the  part  of  the  premises  irhich  he  retains,  if  he  has 
been  evicted  from  the  other  part  by  the  landlord ;  "  and  the  rule  as 
recognized  in  other  cases  and  generally  stated  in  the  treatises  is, 
that  an  eviction  from  part  will  operate  as  a  suspension  of  the  whole. 
24  Wend.  445;  Comyn's  Land.  &  Ten.  524;  2  Saund.  PI.  &  Ev.  630. 


334  DYETT    V.    PENDLETON     *  [CHAP.   VI 

I  suppose  it  is  the  right  of  the  tenant  under  such  circumstances 
to  remain  in  possession  of  the  residue  during  the  term,  and  that  he 
can  neither  be  made  liable  on  the  original  lease  nor  in  an  action 
for  use  and  occupation,  unless  he  holds  over  after  the  expiration 
of  his  term. 

If  I  am  right  in  this  conclusion,  the  wrongful  eviction  of  the  de- 
fendant was  a  bar  to  the  plaintiff's  right  of  recovery  for  the  use  of 
the  premises  in  any  form,  and  it  is  not  necessary  to  consider  whether, 
or  to  what  extent,  the  litigation  of  the  same  subject-matter  or  of 
three  fourths  of  it  at  least,  in  the  former  action,  would  have  con- 
stituted a  good  defence. 

There  are  no  questions  properly  before  us  for  examination,  except 
those  presented  by  the  bill  of  exceptions.  "We  cannot  review  the  de- 
cision of  the  court  below,  on  the  motion  to  set  aside  the  judgment, 
on  the  grounds  of  surprise  and  irregularity.  These  were  matters 
of  discretion,  and  did  not  involve  the  merits.  I  think  the  judgment 
of  the  court  below  should  be  affirmed. 

Gakdiner,  C.  J.,  also  delivered  an  opinion  in  favor  of  affirmance. 

Judgment  affirmed} 


DYETT  V.  PEKDLETON 

4  Cow.  (N.  Y.)  581.    8  Cow.  (N.  Y.)    727.     1825.  1826. 

Covenant  for  rent  upon  a  lease  dated  Oct'oher  15th,  1818,  given 
by  the  plaintiff  to  the  defendant,  for  the  term  of  two,  three,  five, 
or  eight  years,  but  not  for  a  less  term  than  two  years,  of  two  rooms, 
or  the  whole  of  the  second  floor,  and  two  rooms  chosen  by  the  de- 
fendant on  the  third  floor  of  a  certain  house  or  store  in  Beaver 
street,  corner  of  William  street,  in  the  city  of  N"ew  York,  at  a  rent  of 
$425  per  annum  which  the  defendant  covenanted  to  pay,  and  entered 
into  possession  of  the  demised  premises. 

The  defendant  pleaded,  1st,  non  est  factvm; 

2.  That  before  any  of  the  rent  became  due,  to  wit,  on,  &c.  the 
plaintiff  entered  upon  the  -demised  premises,  and  ejected,  expelled, 
put  out  and  amoved  the  defendant,  and  kept  and  continued  him  so 
ejected,  expelled,  and  amoved  from  thence  hitherto. 

1  And  see  New  York  Dry  Goods  Store  v.  Pabst  Breu-ing  Co.,  112  F.  R. 
381;  Skaggs  v.  Emerson,  50  Cal.  3;  Smith  v.  Wise.  58  111.  141;  Lei.^hman  v. 
White,  1  All.  (Mass.)  489;  Smith  v.  McEnany,  170  Mass.  26;  Kuschinsky  v. 
Flanigan,  170  Mich.  245;  Powell  v.  Merrill,  92  Vt.  124;  Burn  v.  Phelps.  1 
Stark.  94;  41  L.  R.  A.  n.  s.  430  note.  But  compare  Warren  v.  Wagner,  75 
Ala.  188,  202-203;  Anderson  v.  Winton,  136  Ala.  422;  Miller  v.  Southern 
Ry.  Co.,  108  S.  E.  (Va.)  838. 

Material  interference  by  landlord  with  access  to  leased  premises.  Stnith 
v.  Tenny.^on,  219  Mass.  508;  Pridgeon  v.  Excelsior  Boat  Club.  66  Mich.  326; 
Hall  V.  Irvin,  78  App.  Div.  (N.  Y.)  107;  Emison  v.  Lowry,  3  S.  D.  77;  12 
A.  L.  R.  175  note. 


SECT.    Ill]  DYETT    V.    PENDLETON  335 

Replication,  denying  the  expulsion  and  issue. 

The  cause  was  tried  at  the  New  York  Circuit,  June  Idth  1823, 
before  Edwards,  C.  Judge. 

On  the  trial,  the  counsel  for  the  defendant  produced  receipts 
for  rent  to  the  1st  February,  1820,  and  offered  to  prove  that  about 
that  time  the  plaintiff  introduced  into  the  house  demised,  lewd 
women  or  prostitutes,  and  continued  this  practice  from  time  to  time 
and  at  sundry  times,  keeping  and  detaining  them  in  there  all  night 
for  the  purpose  of  prostitution;  that  such  women  would  frequently 
enter  the  house  in  the  day  time,  and,  after  staying  all  night,  would 
leave  it  by  day  light  in  the  morning;  that  the  plaintiff  sometimes 
introduced  other  men  into  the  house,  who,  together  with  him,  kept 
company  with  the  lewd  women  or  prostitutes  during  the  night;  that 
on  such  occasions,  the  plaintiff  and  the  women,  being  in  company 
in  certain  parts  of  the  house  not  included  in  the  lease,  but  adjacent 
and  in  the  plaintiff's  occupation,  were  accustomed  to  make  a  great 
deal  of  indecent  noise  and  disturbance,  the  women  often  screaming 
extravagantly  so  as  to  be  heard  throughout  the  house,  and  by  the 
near  neighbors;  and  frequently  using  obscene  and  vulgar  language, 
so  loud  as  to  be  understood  at  a  considerable  distance;  that  such 
noise  and  riotous  proceedings  being  frequently  continued  all  night, 
greatly  disturbed  the  rest  of  persons  sleeping  in  other  parts  of  the 
house,  and  particularly  in  the  parts  demised;  that  these  practices 
were  matter  of  conversation  and  reproach  in  the  neighborhood ;  and 
were  of  a  nature  to  draw,  and  did  draw,  odium  and  infamy  upon  the 
house  as  being  a  place  of  ill  fame,  so  that  it  was  no  longer  reputable 
for  moral  or  decent  persons  to  dwell  or  enter  there;  that  all  these 
practices  were  by  the  procurement  or  permission  and  concurrence 
of  the  plaintiff.  That  the  defendant,  being  a  person  of  good  and 
respectable  character,  was  compelled  by  the  repetition  of  these 
practices  to  leave  the  house,  and  did  leave  it  for  that  cause,  about 
the  beginning  of  March,  1820;  and  did  not  return.  That  a  respect- 
able man  by  the  name  of  Fox,  to  whom  part  of  the  house  had  been 
underlet,  left  it  for  the  same  cause. 

This  evidence  was  objected  to,  and  overruled  by  the  Judge  as  in- 
admissible upon  the  issue;  and  the  defendant's  counsel  excepted. 
Verdict  for  the  plaintiff,  damages  $362.52. 

[Counsel  for  defendant  moved  for  a  new  trial  but  the  motion  was 
denied.  The  opinion  of  Sutherland,  J.,  is  omitted.  The  case  was 
carried  to  the  Court  for  Correction  of  Errors  and  judgment  was  re- 
versed by  vote  of  sixteen  to  six.  The  opinion  of  Spencer,  Senator, 
for  reversal  was  as  follows :] 

Spencer,  SenatoT*.  It  seems  to  be  conceded  that  the  only  plea 
which  could  be  interposed  by  the  defendant  below,  to  let  in  the  de- 
fence which  he  offered,  if  any  would  answer  that  purpose,  Avas,  that 
the  plaintiff  had  entered  in  and  upon  the  demised  premises,  and 
ejected  and  put  out  the  defendant.     Such  a  plea  was  filed;  and  it 


336  DYETT    V.    PENDLETON  [CHAP.   VI 

is  contended  on  the  one  side,  that  it  must  be  literally  proved,  and 
an  actual  entry  and  expulsion  established;  while  on  the  other  side 
it  is  insisted,  that  a  constructive  entry  and  expulsion  is  sufficient, 
and  that  the  facts  which  tended  to  prove  it,  should  have  been  left 
to  the  jury.  It  is  true,  that  "  pleading  is  the  formal  mode  of  alleg- 
ing that  on  the  record,  which  Avould  be  the  support  or  defence  of 
the  party  on  evidence,"  as  defined  by  Buller,  J.,  in  1  Term  Kep.  159 ; 
and  the  same  learned  judge  immediately  after  draws  the  correct  dis- 
tinction :  "  whether  the  evidence  in  each  particular  case  is  a  suffi- 
cient foundation  for  that  support  or  defence,  is  a  question  that  does 
not  arise  upon  pleading,  but  upon  the  trial  of  the  issue  afterwards." 
In  pleading,  the  legal  effect  of  the  facts  is  stated^  not  the  facts  them- 
selves. The  form  of  the  plea  therefore,  does  not  determine  the  kind 
of  evidence  necessary  to  establish  it.  To  support  a  plea  that  the 
defendant  never  promised,  he  may  prove  a  payment,  or  a  perform- 
ance of  his  undertaking,  or  some  matters  which  excused  him  from 
its  performance.  A  very  familiar  case  is  presented  in  the  action 
of  trover,  which  has  been  partly  alluded  to  on  the  argument.  The 
plaintiff  alleges,  that  he  casually  lost  the  chattel,  which  the  defend- 
ant found  and  converted  to  his  own  use.  It  is  very  questionable 
whether,  if  this  were  strictly  proved  precisely  as  alleged,  it  would 
support  any  action.  The  proof,  however,  to  sustain  it,  is  either  that 
the  defendant  tortiously  took  the  chattel,  which  is  itself  evidence 
of  a  conversion,  (and  directly  contrary  to  the  allegation  of  finding,) 
or  that  the  defendant  came  legally  into  the  possession  of  the  article, 
and  subsequently,  on  a  demand  made,  refused  to  restore  it  to  the 
owner.  From  this  a  conversion  is  implied.  But  it  is  plain  it  is  not 
proved.  So  in  an  action  against  the  indorser  of  a  note,  the  aver- 
m.ent  of  a  demand  of  payment  and  of  notice  of  non-payment,  is 
supported  by  evidence  of  due  diligence  without  actual  demand. 
Again,  a  promise  by  the  indorser,  to  pay  a  note,  dispenses  with 
the  necessity  of  proving  a  demand  and  notice.  There  are  many 
similar  cases,  where  the  proof  of  one  fact  justifies  the  legal  con- 
clusion of  another  fact.  This,  then,  is  a  question  of  principle, 
whether  the  evidence  offered  by  the  defendant  below  tended  in  any 
manner  to  establish  a  constructive  entry  and  eviction  by  the  plaintiff; 
for  if  it  did,  it  should  have  been  left  to  the  jury  to  decide  on  its 
effect. 

To  determine  this,  it  seems  only  necessary  to  inquire  what  are 
the  conditions,  express  or  implied,  on  which  the  defendant  was  to 
pay  the  rent  The  agreement  set  forth  in  the  plea  contains  a 
covenant  that  the  defendant  shall  have  "  peaceable,  quiet  and  in- 
disputable possession"  of  the  premises.  This  is,  in  its  nature,  a 
condition  precedent  to  the  payment  of  rent;  and  whether  the  pos- 
session was  peaceable  and  quiet,  was  clearly  a  question  of  fact  for 
the  jury.  Such  conduct  of  the  lessor  as  was  offered  to  be  proved  in 
this  case,  went  directly  to  that  point ;  and  without  saying  at  present, 


SECT.    Ill]  DYETT    V.    PENDLETON  337 

whether  it  was  or  was  not  sufficient  to  establish  a  legal  disturbance, 
it  is  enough  that  it  tended  to  that  end,  and  should  have  been  re- 
ceived, subject  to  such  advice  as  the  judge  might  give  to  the  jury. 

The  opinion  of  the  supreme  court  proceeds  upon  the  ground 
that  there  must  be  an  actual,  physical  eviction,  to  bar  the  plaintiifs: 
and  in  most  of  the  cases  cited,  such  eviction  was  proved ;  and  all 
of  them  show  that  such  is  the  form  of  the  plea.  But  the  forms  of 
pleading  given,  and  the  cases  cited,  do  not  establish  the  principle 
on  which  the  recovery  of  rent  is  refused,  but  merely  furnish 
illustrations  of  that  principle,  and  exemplifications  of  its  appli- 
cation. The  principle  itself  is  deeper  and  more  extensive  than  the 
cases.  It  is  thus  stated  by  Baron  Gilbert,  in  his  essay  on  rents, 
p.  145 :  "A  rent  is  something  given  by  way  of  retribution  to  the 
lessor,  for  the  land  demised  by  him  to  the  tenant,  and  consequently 
the  lessor's  title  to  the  rent  is  founded  upon  this:  that  the  land 
demised,  is  enjoyed  by  the  tenant  during  the  term  included  in  the 
contract;  for  the  tenant  can  make  no  return  for  a  thing  he  has  not. 
If,  therefore,  the  tenant  be  deprived  of  the  thing  letten,  the  obligation 
to  pay  the  rent  ceases,  because  such  obligation  has  its  force  oidy  from 
the  consideration,  which  was  the  enjoyment  of  the  thing  demised." 
And  from  this  principle,  the  inference  is  drawn,  that  the  lessor  is 
not  entitled  to  recover  rent  in  the  following  cases :  1st.  If  the 
lands  demised  be  recovered  by  a  third  person,  by  a  superior  title, 
the  tenant  is  discharged  from  the  payment  of  rent  after  eviction 
by  such  recovery.  2d.  If  a  part  only  of  the  lands  be  recovered  hy  a 
third  person,  such  eviction  is  a  discharge  only  of  so  much  of  the  rent 
as  is  in  proportion  to  the  value  of  the  land  evicted.  3d.  If  the  lessor 
expel  the  tenant  from  the  premises,  the  rent  ceases.  4th.  If  the 
lessor  expel  the  tenant  from  a  part  only  of  the  premises,  the  tenant 
is  discharged  from  the  payment  of  the  whole  rent;  and  the  reason 
for  the  rule  why  there  shall  be  no  apportionment  of  the  rent  in 
this  case  as  well  as  in  that  of  an  eviction  by  a  stranger,  is,  that 
it  is  the  wrongful  act  of  the  lessor  himself,  "  that  no  man  may  be 
encouraged  to  injure  or  disturb  his  tenant  in  his  possession,  whom, 
by  the  policy  of  the  feudal  law,  he  ought  to  protect  and  defend." 

Tliis  distinction,  which  is  as  perfectly  well  settled  as  any  to 
be  found  in  our  books,  establishes  the  great  principle  that  a  tenant 
shall  not  be  required  to  pay  rent,  even  for  the  part  of  the  premises 
which  he  retains,  if  he  has  been  evicted  from  the  other  part  by  the 
landlord.  As  to  the  part  retained,  this  is  deemed  such  a  disturbance, 
such  an  injury  to  its  beneficial  enjoyment,  such  a  diminution  of  the 
consideration  upon  which  the  contract  is  founded,  that  the  law  re- 
fuses its  aid  to  coerce  the  payment  of  any  rent.  Here,  then,  is  a 
case,  where  actual  entry  and  physical  eviction  are  not  necessary  to 
exonerate  the  tenant  from  the  payment  of  rent;  and  if  the  ])vinci- 
ple  be  correct  as  applied  to  a  part  of  the  premises,  why  should  not 
the  same  principle  equally  apply  to  the  whole  property   demised, 


338  DYETT   V.    PENDLETON  [CHAP.   VI 

wliere  there  has  been  an  obstruction  to  its  beneficial  enjoyment, 
and  a  diminution  of  the  consideration  of  the  contract,  by  the  acts 
of  the  landlord,  although  those  acts  do  not  amount  to  a  physical 
eviction?  If  physical  eviction  be  not  necessary  in  the  one  case,  to 
discharge  the  rent  of  the  part  retained,  why  should  it  be  essential  in 
the  other,  to  discharge  the  rent  of  the  whole?  If  I  have  not  de- 
ceived myself,  the  distinction  referred  to  settles  and  recognizes  the 
principle  for  which  the  plaintiff  in  error  contends,  that  there  may 
be  a  constructive  eviction  produced  by  the  acts  of  the  landlord. 

An  eviction  cannot  be  more  than  an  ouster;  and  we  have  the 
authority  of  Lord  Mansfield  for  saying  that  there  may  be  a  con- 
structive ouster.  In  Cowper,  217,  he  remarks,  "  Some  ambiguity 
seems  to  have  arisen  from  the  term  actual  ouster^  as  if  it  meant 
some  act  accompanied  by  real  force,  and  as  if  a  turning  out  by  the 
shoulders  were  necessary ;  but  that  is  not  so :  a  man  may  come  in 
by  rightful  possession,  and  yet  hold  over  adversely  without  a  title," 
&c. 

I  think  the  same  principle  governed  an  ancient  case  stated  in 
1  Rolle's  Abridgement,  454,  of  which  the  following  is  a  translation: 
"  If  the  lessee  for  years  of  a  house,  covenant  to  repair  it  and  leave 
it  in  as  good  plight  as  he  found  it,  and  afterwards  certain  sparks 
of  fire  come  from  a  chimney  in  the  house  of  the  lessor,  not  very 
distant,  by  which  the  house  of  the  lessee  is  burned,  that  shall  excuse 
the  performance  of  the  covenant;  and  the  lessee  is  not  bound  to  re- 
build, because  it  came  of  the  act  of  the  lessor  himself."  The  analogy 
between  the  covenant  to  repair  and  that  to  pay  rent,  is  sufficiently 
strong  to  justify  the  application  of  this  case  to  the  latter;  and  if 
so,  it  establishes  the  doctrine  that  other  acts  of  the  landlord  going 
to  diminish  the  enjoyment  of  the  premises,  besides  an  actual  ex- 
pulsion, will  exonerate  from  the  payment  of  rent. 

That  is  precisely  the  principle  contended  for  by  the  plaintiff 
in  error  in  this  case.  It  is  a  just  and  equitable  doctrine,  and  has 
been  so  applied  in  analogous  cases.  In  Hearn  v.  Tomlin,  (Peake's 
N.  P.  Cases,  192,)  which  was  an  action  for  use  and  occupation  of  a 
wharf,  depending  on  the  same  principles  as  an  action  on  a  lease 
for  rent,)  the  defendant  had  agreed  to  purchase  the  wharf  under  a 
representation  of  the  plaintiff  that  he  had  a  lease  of  it  for  13  years, 
and  entered  into  possession;  but  on  discovering  that  the  plaintiff 
had  a  lease  for  only  3  years,  he  refused  to  complete  the  purchase. 
Lord  Kenyon  held,  that  to  maintain  the  action,  it  must  appear  that 
the  occupation  had  been  beneficial  to  the  defendant,  and  that  it 
appearing  to  have  been  injurious,  the  plaintiff  could  not  recover. 

"We  regard  cases  as  containing  the  evidence  of  the  law,  as  evinc- 
ing the  rule  of  decision ;  and  they  are  consulted  to  ascertain  the  prin- 
ciple on  which  that  rule  is  founded.  The  review  of  the  cases  now 
made,  shows  that  the  principle  on  which  a  tenant  is  required  to  pay 
rent,   is   the  beneficial   enjoyment   of   the  premises,   unmolested   in 


SECT.    Ill]  DYETT   V.    PENDLETON  339 

any  way  by  the  landlord.  It  is  a  universal  principle  in  all  cases 
of  contract,  that  a  party  who  deprives  another  of  the  consideration 
on  which  his  obligation  was  founded,  can  never  recover  damages  for 
its  non-fulfilment.  The  total  failure  of  the  consideration,  especially 
when  produced  by  the  act  of  the  plaintiff,  is  a  valid  defence  to  an 
action,  except  in  certain  cases,  where  a  seal  is  technically  held  to 
conclude  the  party.  This  is  the  great  and  fundamental  principle 
which  led  the  courts  to  deny  the  lessor's  right  to  recover  rent  where 
he  had  deprived  the  tenant  of  the  consideration  of  his  covenant,  by 
turning  him  out  of  the  possession  of  the  demised  premises.  It  must 
be  wholly  immaterial  by  what  acts  that  failure  of  consideration  has 
been  produced;  the  only  inquiry  being,  has  it  failed  by  the  conduct 
of  the  lessor?  This  is  a  question  of  fact,  and  to  establish  it,  the 
proof  offered  in  this  case  was  certainly  competent.  I  do  not  feel 
called  upon  to  say  that  those  facts  would  have  been  alone  sufficient. 
Of  that  the  jury  were  to  judge,  at  least,  in  the  first  instance;  and 
the  question  whether  they  amounted  to  a  full  and  complete  legal 
defence,  might  have  been  presented  in  another  shape.  The  only  ques- 
tion for  our  decision  is,  whether  that  testimony  ought  to  have  been 
received  at  all?  Believing  that  it  tended  to  establish  a  constructive 
eviction  and  expulsion  against  the  consent  of  the  tenant ;  that  it 
tended  to  prove  a  disturbance  of  his  quiet  possession,  and  a  failure 
of  the  consideration  on  which  only  the  tenant  was  obliged  to  pay 
rent,  I  am  of  opinion  that  it  ought  to  have  been  received;  and  that 
therefore  the  judgment  of  the  supreme  court  should  be  reversed,  with 
directions  to  issue  a  venire  de  novo. 

I  cannot  omit  the  opportunity  presented  by  this  case,  of  observ- 
ing, that  it  appears  to  mo  to  be  one  of  those  wnthin  the  view  of  the 
framers  of  our  constitution,  in  the  organization  of  this  court. 
When  this  court,  of  last  resort,  was  declared  to  consist  of  the  sena- 
tors, with  the  chancellor  and  judges,  it  must  have  occurred,  that 
the  largest  proportion  of  its  members  would  be  citizens  not  belonging 
to  the  legal  profession.  And  it  must,  therefore,  have  been  intended 
to  collect  here,  a  body  of  sound  practical  common  sense,  which  would 
not  overthrow  law,  but  which  would  apply  the  principles  and'  reasons 
of  the  law  according  to  the  justice  of  each  case,  without  regard  to 
the  technical  refinements  and  arbitrary  and  fictitious  rules,  which 
will  alw^ays  grow  upon  professional  men.  And  herein  I  conceive, 
is  the  great  excellence  of  this  court;  that  whenever  it  perceives  a 
rule  established  by  the  inferior  courts,  pushed  to  such  an  extent 
as  to  produce  positive  injustice,  it  is  within  its  power,  as  it  most 
certainly  will  always  be  its  disposition,  to  rescind  or  modify  such 
rule.  Several  signal  examples  of  the  exercise  of  this  power  might 
be  cited  in  the  decisions  of  this  court.  Wore  tliis,  then,  a  case  in 
which  the  law  was  considered  settled  by  the  supreme  court,  that 
nothing  but  a  physical  tiirning  a  tenant  out  of  possession  would 
exonerate   him  from   the   payment   of   his   rent,   it   would   be   pre- 


340  EIXiERTOM     V.    I'ACiE  [CHAP.    VI 

cisely  sucli  as  would  require  uiid  justify  the  interposition  of  this 
court  to  correct  it;  not  by  making  law,  but  by  applying  its  familiar 
and  elementary  principles  to  a  new  case.  Suppose  the  landlord 
had  established  a  hospital  for  the  small  pox,  the  plague,  or  the 
yellow  fever,  in  the  remaining  part  of  this  house;  suppose  he  had 
made  a  deposit  of  gunpowder,  under  the  tenant,  or  had 
introduced  some  offensive  and  pestilential  materials  of  the  most  dan- 
gerous nature;  can  there  be  any  hesitation  in  saying  that  if,  by 
such  means,  he  had  driven  the  tenant  from  his  habitation,  he  should 
not  recover  for  the  use  of  that  house,  of  which,  by  his  own  wrong, 
he  had  deprived  his  tenant?  It  would  need  nothing  but  common 
sense  and  common  justice  to  decide  it.  No  man  shall  derive  benefit 
from  his  own  wrong.  The  idea  that  the  tenant  has  some  other 
remedy  to  remove  the  evil,  does  not  reach  the  case  where  the  injury 
is  already  inflicted.  Besides,  it  has  been  entirely  exploded  on  the 
argument  of  this  cause.  For,  in  the  very  case  where  it  is  admitted, 
the  tenant  would  be  exonerated  from  the  payment  of  rent,  where 
there  had  been  an  actual  eviction  and  physical  expulsion  by  his  land- 
lord, he  has  an  adequate  and  effectual  remedy  under  the  statute  to 
prevent  forcible  entries. 

But  as  has  been  before  remarked,  even  the  cases  admit  that  the 
tenant  may  be  exonerated  from  rent  without  a  physical  expulsion ; 
and  there  is  no  necessity  to  call  upon  this  court  to  establish  the  law 
of  a  new  case.  It  is  already  established  in  conformity  with  what 
appears  to  me  the  plainest  dictates  of  justice.^ 

A  majority  were  for  reversal. 

Whereupon 

It  Avas  ordered,  that  the  judgment  of  the  supreme  court  be  re- 
versed; and  that  a  venire  de  novo  should  issue  in  the  court  below."' 


EDGEETON  V.  PAGE 

20  N.  Y.  281.     1859. 

Appeal  from  the  Common  Pleas  of  the  city  and  county  of  New 
York.  Action  to  recover  one  quarter's  rent  of  the  first  floor  of  brick 
building  No.  8  Fulton  Street  in  said  city,  for  the  quarter  ending 
May  1st,  1855,  leased  by  the  plaintiff  to  the  defendant  for  one  year 
from  May  1st,  1854,  at  a  yearly  rent  of  $1,500,  payable  quarterly  on 
the  first  days  of  August,  November,  February,  and  May.     The  de- 

1  The  opinions  of  Crary,  Colden,  and  Allen,  Senators,  are  omitted. 

-  See  Lancashire  v.  Ga.rford  Mfg.  Co.,  119  Mo.  App.  418;  Wrilrr  v.  Pan- 
coast,  71  N.  J.  L.  414;  Wolf  v.  Eppenj<fein,  71  Oreg.  1.  Compare  Grahen- 
horst  V.  NicodemuR,  42  Md.  236;  DeWitt  v.  Pierfton,  112  Mass.  8;  Aguglia 
V.  Cavicchia,  229  Mass.  263,  L.  R.  A.  1918  C.  61  note;  Stewart  v.  Lawsor?,  199 
Mich.  497,  L.  R.  A.  1918  D  396  note;  GUhooley  v.  Washington,  4  N.  Y.  217; 
Thompson  v.  R.  B.  Realty  Co.,  105  Wash.  376. 


SECT.    Ill]     .  EDGERTON    V.    PAGE  341 

feiidant  in  his  answer  set  out  a  copy  of  the  lease,  by  which  it 
appeared  that  the  defendant  was  to  have  the  privilege  of  renewal 
for  one  year  at  the  same  rent.  The  answer  alleged  that  this  privi- 
lege was  one  of  the  main  inducements  on  the  part  of  the  defendant 
to  the  taking  of  the  lease,  and  one  of  the  principal  causes  of  its 
value.  The  answer  further  alleged  that  the  plaintiff,  between  the 
first  days  of  February  and  May,  1855,  was  the  occupant  of  the  en- 
tire upper  part  of  the  building  in  question,  and  also  of  the  adjoin- 
ing building;  that  between  those  days,  and  while  the  defendant 
occupied  the  demised  premises,  the  plaintiff  wantonly,  maliciously, 
and  negligently  permitted  certain  water-pipes,  coming  down  through 
the  rear  of  the  building  and  communicating  with  a  sewer  under  the 
demised  premises,  and  which  pipes  w^ere  used  for  carrying  off  the 
waste  water  from  the  upper  stories  of  the  building,  to  get  out  of 
order  and  leak;  that  the  plaintiff,  knowing  this,  maliciously  and 
negligently  permitted  large  quantities  of  water  and  filth  to  flow 
through  the  pipes,  which  leaked  therefrom  into  the  demised  prem- 
ises, injuring  the  property  of  the  defendant,  deposited  therein,  to 
the  amount  of  $390,  interfering  with  and  depriving  the  defendant 
of  the  beneficial  enjoyment  of  the  premises;  that  the  plaintiff  could, 
by  ordinary  care  and  prudence,  have  prevented  the  injury,  and  that 
the  defendant  requested  the  plaintiff  to  repair  the  pipes  or  abstain 
from  their  use,  which  he  neglected  to  do;  that  the  defendant  was  in- 
jured to  the  amount  of  $250  in  the  prosecution  of  his  business  during 
the  quarter  in  question.  The  answer  further  alleged,  that  at  divers 
times  during  the  quarter  in  question,  large  quantities  of  water,  filthy 
and  otherwise,  were  thrown  out  by  the  plaintiff  and  his  servants, 
from  the  rear  windows  of  the  portion  of  the  building  occupied  by 
the  plaintiff,  so  negligently  and  maliciously  as  to  run  into  the  de- 
mised premises,  by  which  the  defendant  was  injured  to  the  amount 
of  $150;  that  the  defendant  was  compelled,  by  the  injuries,  to  aban- 
don the  possession  of  the  premises  on  or  about  the  1st  of  May,  1855, 
thereby  losing  the  benefit  and  being  deprived  of  the  privilege  of 
renewal  created  by  the  lease  which  he  intended  to  avail  himself  of 
but  for  said  injuries.  The  answer  insists  upon  the  facts  as  a  defence 
to  the  action,  and  also  as  a  counter-claim.  The  plaintiff  demurred 
to  the  answer  and  assigned  several  causes,  among  them  that  the 
facts  did  not  constitute  a  defence  nor  a  counter-claim  available  to 
the  defendant  in  the  action.  The  cause  w^as  heard  at  Special  Term, 
and  judgment  given  for  the  defendant  upon  the  demurrer.  The 
plaintiff  appealed;  the  court  at  General  Term  reversed  the  judg- 
ment, and  gave  judgment  for  the  plaintiff,  from  which  the  defendant 
appealed  to  this  court. 

Grover,  J.  The  demurrer  presents  two  questions :  First,  whether 
the  facts  alleged  in  the  answer  constitute  a  defence;  second,  whether 
they  constitute  a  counter-claim,  available  to  the  defendant  by  way 
of  recoupment  or  otherwise  in  this  action.     The  rule  has  long  been 


342  EDGERTON    V.    PAGE  [CHAP.   VI 

settled,  that  a  wrongful  eviction  of  the  tenant  by  the  landlord,  from 
the  whole  or  any  part  of  the  demised  premises,  before  the  rent  be- 
comes due;  precludes  a  recovery  thereof  until  the  possession  is  re- 
stored. Christopher  v.  Austin,  1  Kern,  217.  Whether  this  eviction 
must  be  actual  by  the  forcible  removal  of  the  tenant  by  the  land- 
lord from  the  demised  premises  or  a  portion  thereof,  was  not  settled 
in  this  State  until  the  case  of  Dyett  v.  Pendleton,  8  Cow.  728.  In 
that  case,  the  principle  was  established  by  the  Court  of  the  Correc- 
tion of  Errors,  that  when  the  lessor  created  a  nuisance  in  the  vicinity 
of  the  demised  premises,  or  was  guilty  of  acts  that  precluded  the 
tenant  from  a  beneficial  enjoyment  of  the  premises,  in  consequence 
of  which  the  tenant  abandoned  the  possession  before  the  rent  became 
due,  the  lessor's  action  for  the  recovery  of  the  rent  was  barred, 
although  the  lessor  had  not  forcibly  turned  the  tenant  out  of  pos- 
session. Ever  since  that  case,  this  has  been  considered  as  a  settled 
rule  of  law  binding  upon  all  the  courts  of  the  State,  Such  act  of  the 
lessor,  accompanied  by  an  abandonment  of  possession  by  the  lessee, 
is  deemed  a  virtual  expulsion  of  the  tenant,  and,  equally  with  an 
actual  expulsion,  bars  the  recovery  of  rent.  The  reason  of  the  rule  is, 
that  the  tenant  has  been  deprived  of  the  enjoyment  of  the  demised 
premises  by  the  wrongful  act  of  the  landlord;  and  thus  the  con- 
sideration of  his  agreement  to  pay  rent  has  failed.  In  case  of  evic- 
tion from  a  portion  of  the  premises,  the  law  will  not  apportion  the 
rent  in  favor  of  the  wrong-doer. 

In  this  case,  the  answer  shows  that  the  defendant  continued  to 
occupy  the  premises  for  the  whole  time  for  which  the  rent  demanded 
accrued.  In  this,  the  case  differs  from  Dj/ett  v.  Pendleton,  supra. 
I  cannot  see  upon  what  principle  the  landlord  should  be  absolutely 
barred  from  a  recovery  of  rent,  when  his  wrongful  acts  stop  short  of 
depriving  the  tenant  of  the  possession  of  any  portion  of  the  premises. 
The  injury  inflicted  may  be  to  an  amount  much  larger  than  the 
whole  rent,  or  it  may  be  of  a  trifling  character.  In  all  the  cases 
where  it  has  been  held  that  the  rent  was  extinguished  or  suspended, 
the  tenant  has  been  deprived,  in  whole  or  in  part,  of  the  possession 
by  the  wrongful  act  of  the  landlord,  either  actually  or  constructively. 
There  is  no  authority  extending  the-  rule  beyond  this  class  of  cases. 
It  would  be  grossly  unjust  to  permit  a  tenant  to  continue  in  the 
possession  of  the  premises,  and  shield  himself  from  the  payment 
of  rent  by  reason  of  the  wrongful  acts  of  the  landlord  impairing  the 
value  of  the  use  of  the  premises  to  a  much  smaller  amount  than  the 
rent.  This  must  be  the  result  of  the  rule  claimed  by  the  defendant. 
The  moment  it  is  conceded  that  the  injury  must  be  equal  to  the 
amount  of  the  rent,  the  rule  is  destroyed.  It  would  then  only  be  a 
recoupment  to  the  extent  of  the  injury.  In  Ogilvie  v.  Hull,  5  Hill, 
52,  Nelson,  C.  J.,  in  giving  the  opinion  of  the  court,  says :  That  no 
general  principle  is  better  settled,  or  more  uniformly  adhered  to, 
than  that  there  must  be  an  entry  and  expulsion  of  the  tenant  by 


SECT.    Ill]  EDGERTON    V.    PAGE  343 

the  landlord,  or  some  deliberate  disturbance  of  the  possession  depriv- 
ing the  tenant  of  the  beneficial  enjoyment  of  the  demised  premises, 
to  operate  a  suspension  or  extinguishment  of  the  rent.  The  rule 
contended  for  by  the  defendant  is  a  very  different  one,  suspending 
or  extinguishing  the  rent  whenever  the  enjoyment,  in  consequence  of 
the  tortious  acts  of  tho^lessor,  becomes  less  beneficial  than  it  otherwise 
would  have  been.  The  true  rule,  from  all  the  authorities  is,  that 
while  the  tenant  remains  in  possession  of  the  entire  premises  demised, 
his  obligation  to  pay  rent  continues.^ 

The  remaining  question  is  whetber  a  counter-claim,  arising  from 
the  facts  contained  in  the  answer,  is  available  to  the  defendant  in 
this  action.  By  section  149  of  the  Code,  the  defendant  is  per- 
mitted to  include  in  his  answer  new  matter,  constituting  a  counter- 
claim. Section  150  defines  the  class  of  demands  which  are  em- 
braced in  section  149,  as  counter-claims.  A  counter-claim  must  be, 
1st,  a  cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action ;  or  2d,  in  an  action  arising 
on  contract,  any  other  cause  of  action  arising  also  on  contract  and 
existing  at  the  commencement  of  the  action.  The  demand  of  the  de- 
fendant, set  out  in  the  answer,  does  not  arise  out  of  the  contract 
set  forth  in  the  complaint.  That  contract  is  for  the  payment  of 
rent,  upon  a  lease  of  the  demised  premises.  The  defendant's  de- 
mands arise  from  the  wrongful  acts  of  the  plaintiff  in  permitting 
Avater  to  leak  and  run  into  the  premises,  and  in  causing  or  permit- 
ting it  to  be  thrown  upon  the  premises  and  property  of  the  defendant. 
These  acts  are  entirely  independent  of  the  contract  of  leasing  upon 
which  the  action  is  brought.  The  demands  are  not  connected  with 
the  subject  of  the  action;  that  is,  the  rent  agreed  to  be  paid  for  the 
use  of  the  premises.  The  defendant's  demands  are  for  a  series  of 
ininries  to  his  property  deposited  upon  the  premises,  and  for  im- 
pairing the  value  of  the  possession.  It  would  be  a  very  liberal  con- 
struction to  hold  that  in  an  action  for  rent,  injuries  from  trespasses 
committed  by  the  lessor  upon  the  demised  premises  might  be  inter- 
posed as  a  counter-claim.  The  acts  of  the  plaintiff  in  this  case  are 
of  a  similar  nature.  They  are  either  acts  of  trespass  or  negligence, 
from  which  the  injuries  to  the  defendant  accrued.  Such  a  construc- 
tion could  only  be  supported  by  the  idea,  that  the  subject  of  the 
action  was  the  value  of  the  use  of  the  premises.  But  when  there  is 
an  agreement  as  to  the  amount  of  rent,  that  value  is  immaterial. 
Unless  the  acts  of  the  defendant  amount  to  a  breach  of  the  contract 

1  Accord.  Veysey  v.  Moriijama,  195  Pac.  (Cal.)  662;  Taylor  v.  Finnigan, 
189  Mass.  568;  Bowdvr  v.  GilUs,  132  Minn.  189;  Metropolc  Cotuiruriion  Co. 
v.  Hartigan.  83  N.  J.  L.  409;  California  Bldg.  Co.  v.  Drnry,  103  Wash.  577. 
And  see  Edumrds  v.  Candy,  14  Hun.  (N.  Y.)  596;  Tham  v.  Carrnll,  147 
App.  Div.  (N.  Y.)  229.  232;  Boreel  v.  Lawton,  90  N.  Y.  293.  Compare 
Epstein  v.  Dunbar,  221  Mass.  579. 


344  HARPER    V.    MCMAHON  [CHAP.   VI 

of  letting,  tliey  are  not  connected  with  the  subject  of  the  action. 
In  the  case  of  the  Mayor  of  New  York  v.  Mahie,  3  Kern.  151,  it 
was  held  by  this  court  that  a  covenant  for  quiet  enjoyment  by  the 
lessor  was  implied  in  a  lease  under  seal,  for  a  term  not  exceeding 
three  years,  since  as  well  as  before  the  Revised  Statutes;  that  this 
covenant  was  broken  by  an  interference  with  possession  by  the  lessor 
under  a  claim  of  right;  consequently,  that  damages  sustained  from 
such  acts  might  be  recovered  in  aii  action  for  rent.  It  was  remarked 
by  Denio,  J.,  in  giving  the  opinion  in  that  case,  that  it  is  not,  how- 
ever, every  mere  trespass  by  the  lessor  upon  the  demised  premises 
which  will  amount  to  a  breach  of  this  covenant;  although  the  cove- 
nantor cannot  avail  himself  of  the  subterfuge,  that  his  entry  was 
unlawful,  and  he  therefore  a  trespasser,  to  avoid  the  consequences 
of  his  own  wrong,  still,  to  support  the  action  of  covenant,  the  entry 
must  be  made  under  an  assumption  of  title.  For  this,  the  learned 
judge  cites  Piatt  on  Covenants,  319,  320.  There  is  nothing  in  the 
answer  in  this  case  tending  to  show,  that  any  of  the  acts  of  the  de- 
fendant were  done  under  any  claim  of  right  whatever.  They  did 
not  therefore  amount  to  a  breach  of  the  contract  created  by  the 
lease,  and  the  injuries  sustained  by  the  defendant  do  not  therefore 
constitute  a  counter-claim  connected  Avith  the  subject  of  the  action. 
The  judgment  should  be  affirmed. 

All  the  judges  concurring,  Judgment  affirmed.^ 


HARPER  V.  McMAHON 
167  Wis.  388.    1918. 

Appeal  from  a  judgment  of  the  circuit  court  for  Milwaukee 
county :    "W.  J.  Turner,  Circuit  Judge.    Reversed. 

Action  begun  in  the  civil  court  to  recover  a  balance  of  rent  due 
on  the  lease  of  a  flat,  vacated  by  defendant  because  he  claimed  ade- 
quate heat  was  not  furnished  as  provided  for  in  the  lease.  Defend- 
ant rented  the  flat  in  August,  1913;  paid  rent  till  the  1st  day  of 
March,  1914,  and  vacated  it  the  latter  part  of  February  of  that 
year.  The  civil  judge  found  as  facts  "  that  from  and  after  the  third 
week  in  December  of  the  year  1913  the  said  plaintiff  failed  and 
neglected  to  furnish  heat  to  the  said  apartment  as  required  by  said 
lease,  and  continuously  thereafter  failed  and  neglected  to  so  operate 
the  heating  apparatus  of  said  building  so  as  to  furnish  heat  reason- 
ably required  for  the  habitation  of  said  apartment."  He  further 
found  that  the  defendant  notified  the  agent  in  charge  of  the  flat  of 
the  lack  of  heat  at  least  once  in  December,  1913,  once  in  January, 

1  See  Smith  v.  Greenstone,  208  S.  W.  (Mo.  App.)  628;  York  v.  Steward, 
21  Mont.  51.5;  Weinstein  v.  Barrasso,  139  Tenn.  593.  Compare  Boston 
Veterinary  Hospital  v.  Kiley,  219  Mass.  533;  Alger  v.  Kennedy,  49  Vt.  109. 


SECT.    Ill]  HARPER    V.    AlCAIAHON  345 

1914,  and  twice  in  February,  1914,  and  he  also  notified  the  janitor 
at  least  six  different  times  and  that  at  least  two  of  such  notices  to 
the  janitor  were  by  him  communicated  to  the  agent  in  charge  of  the 
flats.  As  conclusions  of  law  he  found  that  plaintiff's  failure  to  fur- 
nish adequate  heat  constituted  a  breach  of  the  lease  and  an  eviction 
and  that  defendant  was  entitled  to  a  judgment  dismissing  the  action 
upon  the  merits.  From  a  judgment  entered  accordingly  the  plaintiff 
appealed  to  the  circuit  court.  It  held  the  evidence  did  not  show  a 
breach  of  the  lease  or  an  eviction  and  entered  judgment  for  plain- 
tiff for  the  balance  of  the  rent  due  after  March  1,  1914.  The  defend- 
ant appealed. 

ViNjE,  J.  The  learned  circuit  judge  must  have  proceeded  upon  an 
erroneous  idea  of  what  constitutes  an  eviction  by  reason  of  lack  of 
heat  in  reaching  the  conclusion  that  there  was  no  breach  of  the  lease 
in  this  case  because  of  deficient  heating.  He  says  in  his  o})inion, 
"  There  is  testimony  that  the  apartment  was  cold  upon  occasions,  but 
I  do  not  think  it  justifies  the  conclusion  that  it  was  continuously  cold 
so  as  to  make  it  not  habitable."  A  dwelling  need  not  be  continuously 
cold  in  order  to  be  uninhabitable  within  the  meaning  of  a  lease  agree- 
ing to  furnish  heat  in  a  city  apartment.  Under  such  an  agreement 
the  tenant  is  entitled  to  sufficient  heat  to  make  the  apartment  gen- 
erally comfortable  to  dwell  in  for  ordinary  men,  women,  and  children. 
That  there  may  be  lapses  from  such  a  condition  owing  to  the  severity 
and  sudden  changes  in  our  climate,  to  occasional  inattention  on  the 
part  of  the  janitor,  to  necessary  repairs  of  the  heating  apparatus,  or 
other  excusable  causes,  without  constituting  an  eviction,  is  well  set- 
tled. Such  was  the  ruling  in  Northwestern  R.  Co.  v.  Hardy,  160  Wis. 
324,  151  X.  W.  791.  The  circuit  judge  further  states  that  ''the  occa- 
sional freezing  up  of  the  maid's  bathroom  would  not  be  sufficient  to 
justify  the  conclusion  that  there  was  an  eviction.  There  was  another 
bathroom  which  she  was  at  liberty  to  use."  It  is  true  that  occasional 
freezing  up  of  the  maid's  bathroom  might  not  constitute  an  eviction, 
but  not  because  her  mistress,  as  in  this  case,  allowed  her  to  use  her 
bathroom,  but  because  the  freezing  was  only  occasional  and  excusable. 
A  tenant  is  entitled  to  the  use  of  the  entire  premises  rented  by  him, 
and  the  landlord  cannot  excuse  a  wrongful  eviction  from  a  portion 
thereof  by  the  plea  that  the  tenant  can  use  the  remainder.  We  reach 
the  conclusion  that  the  learned  circuit  judge  erred  in  his  conception 
of  what  constituted  an  eviction  the  more  readily  because  the  evidence 
practically  without  dispute,  sustains  the  findings  of  the  civil  court 
as  to  the  lack  of  heat.  That  being  so,  we  cannot  assume  that  the 
circuit  judge  was  unmindful  of  the  oft-repeated  rule  that  findings  of 
fact  made  by  the  civil  court  should  not  be  set  aside  by  the  circuit 
court  upon  appeal  unless  against  the  clear  preponderance  of  the 
evidence.  Pahst  B.  Co.  v.  Mihvaul-ee  L.  Co.  IHG  Wis.  615.  146  N.  W. 
879;  Mechanical  A.  Co.  v.  Kiecl-hefer  E.  Co..  164  Wis.  G'k  159 
N.  W.  557.     Here  the  evidence  showed  that  the  defendant  and  his 


346  ROYCE    V.   GUGGENHEIM  [CHAP.   VI 

family  were  troubled  almost  constantly  by  a  low  temperature.  They 
had  to  go  to  bed  at  10  or  a  quarter  past  to  keep  warm.  Early  in  the 
morning  the  temperature  was  from  40  to  50  degrees.  In  the  after- 
noon it  would  go  up  to  60,  62  or  63  degrees,  and  then  in  the  evening 
it  would  get  warm.  One  bathroom  froze  up  three  times  in  one  week, 
and  the  maid's  bathroom  was  frozen  up  for  two  weeks,  and  she  could 
not  sit  in  her  room  at  all  evenings  without  wraps  on,  and  the  family 
often  had  to  sit  in  their  wraps  to^keep  warm.  This  lack  of  heat  was 
not  denied  by  the  evidence  of  plaintiff.  All  it  tends  to  show  is  that 
the  heating  plant,  if  properly  run,  was  adequate  to  heat  the  apart- 
ment, and  that  it  was  customary  to  shut  off  heat  at  night  except 
in  the  coldest  weather.  In  view  of  the  uncontradicted  evidence 
as  to  the  continued  lack  of  heat  and  the  repeated  notice  thereof  to 
plaintiff,  the  circuit  court  should  have  affirmed  the  judgment  of  the 
civil  court.  There  can  be  no  doubt  that  under  the  evidence,  only  a 
portion  of  which  is  here  given  in  substance,  there  was  in  this  case  a 
failure  to  furnish  the  required  amount  of  heat.  That  amount,  as 
before  stated,  is  such  as  will  render  the  temperature  of  the  rooms 
reasonably  comfortable  for  the  average  person  generally  during  the 
time  they  are  customarily  occupied,  due  regard  being  had  to  the  kind 
of  use  for  which  each  room  is  intended  and  excluding  lapses  due  to 
sudden  and  severe  changes  in  temperature,  to  occasional  inattention 
by  the  janitor,  or  to  the  necessity  of  making  repairs  to  the  heating 
plant,  or  to  other  unforeseen  or  excusable  causes.  Otherwise  the  tem- 
perature must  be  maintained  at  such  a  degree  as  will  render  the 
rooms  reasonably  comfortable  for  the  ordinary  tenant  during  the 
time  they  are  visually  occupied  for  the  intended  purposes. 

By  the   Court.  —  Judgment  reversed,   and   cause  remanded   with 
directions  to  affirm  the  judgment  of  the  civil  court. ^ 


EOYCE  V.  GUGGENHEIM 
106  Mass.  201.    1870. 

CoNTKACT  for  the  rent  from  March  7  to  April  7,  1869,  of  real 
estate  leased  by  the  plaintiff  to  the  defendant  for  three  years  from 
September  7,  1868  (by  a  lease,  dated  on  that  day,  which  described  the 
demised  premises  as  "  the  small  wooden  house  and  store,  now  occu- 
pied by  said  Guggenheim  and  numbered  117  on  Eliot  Street  in 
Boston,"  and  contained  no  express  covenant  on  the  part  of  the  land- 
lord. 

1  Morse  v.  Tochterman,  21  Cal.  App.  726;  Conroy  v.  Toomay,  234  Mass. 
384;  Bass  v.  RoUms,  63  Minn.  226;  Berlingcr  v.  MacDonald,  149  App.  Div. 
(N.  Y.)  5;  Russell  v.  Ohon,  22  N.  D.  410;  McSorley  v.  Alien,  36  Pa.  Super. 
271;  Buchanan  v.  Oranqe,  118  Va.  511.  accord.  And  see  Ne^n  York  Central 
R.  R.  v.  Stonrman,  236  Mass.  82;  McDuffee  v.  Colwell.  207  Mich.  154;  Hans- 
man  V.  Western  Union  Tel.  Co.,  144  Minn.  56;  37  L.  R.  A.  n.  s.  1217  note; 
L.  R.  A.  1916  E  742  note. 


SECT.   Ill]  ROYCE    V.   GUGGENHEIM  347 

At  the  trial  in  the  Superior  Court,  before  RocJcivell,  J.,  the  defend- 
ant relied  on  his  eviction  from  the  premises,  in  defence  against  the 
action ;  and  the  plaintiff  requested  a  ruling,  "  that,  in  order  to  consti- 
tute an  eviction,  whether  of  a  part,  or  of  the  whole  of  said  prem- 
ises, it  must  be  as  if  closed  up  actual  and  entii'e,  there  being  evi- 
dence of  some  use  of  the  alleged  evicted  rooms."  The  judge  declined 
so  to  rule;  but  instructed  the  jury  ''that  if  the  plaintiff,  before  the 
month  for  which  rent  was  sought  to  be  recovered,  had  evicted  the  de- 
fendant from  two  or  more  of  the  rooms,  he  cannot  recover  for  that 
month's  rent ;  that  if  the  rooms,  at  the  time  of  the  lease  and  for  some 
time  after,  had  light  and  air  enough  to  make  them  fit  for  use  as 
kitchen  and  sleeping-chamber,  and  were  thus  used,  and  if,  after  the 
erection  by  the  plaintiff  of  the  new  building  in  the  back  yard,  against 
the  house,  closing  the  windows  of  those  rooms,  those  rooms  were 
made  entirely  unfit  for  those  purposes,  and  by  reason  of  that  unfitness 
were  abandoned,  and  this  erection  was  not  by  the  license  or  consent 
of  the  defendant,  this  was  an  eviction  so  as  to  effect  a  suspension  of 
the  rent,  and  it  .was  not  essential  to  such  eviction  that  the  doors 
of  the  rooms  should  have  been  closed  up  by  the  plaintiff  so  as  to 
prevent  the  defendant's  entry  into  the  same."  The  jury  returned 
a  verdict  for  the  defendant,  and  the  plaintiff  alleged  exceptions.  The 
bill  of  exceptions  contained  no  statement  of  the  evidence  on  the  ques- 
tion of  eviction,  other  than  appears  in  the  above  statement  of  the 
instructions  given  or  requested. 

Gray,  J.  The  eviction  of  a  tenant  from  the  demised  premises, 
either  by  the  landlord  or  by  title  paramount,  is  a  bar  to  any  demand 
for  rent,  because  it  deprives  him  of  the  whole  consideration  for  Avhich 
rent  was  to  be  paid.  Gilbert  on  Rents,  145;  Morse  v.  Goddard,  13 
Met.  177.  And  his  eviction  by  the  landlord  from  part  of  the  prem- 
ises suspends  the  entire  rent,  because  the  landlord  "  shall  not  so 
apportion  his  own  wrong  as  to  enforce  the  lessee  to  pay  anything  for 
the  residue."  Hale,  C.  J.,  in  Hodghim  v.  Rolson,  1  Ventr.  276,  277; 
Page  v.  Parr,  Style,  432;  Shumway  v.  Collins,  6  Gray,  227;  Leish- 
man  v.  White,  1  Allen,  489. 

To  constitute  an  eviction  which  will  operate  as  a  suspension  of 
rent,  it  is  not  necessary  that  there  should  be  an  actual  physical  ex- 
pulsion of  the  tenant  from  any  part  of  the  premises.  Any  act  of 
a  permanent  character,  done  by  the  landlord,  or  by  his  procurement, 
with  the  intention  and  effect  of  depriving  the  tenant  of  the  enjoy- 
ment of  the  premises  demised,  or  of  a  part  thereof,  to  which  he 
yields  and  abandons  possession,  may  be  treated  as  an  eviction. 
Smith  V.  Raleigh,  3  Camp.  513;  Upton  v.  Toxcnend,  17  C.  B.  30. 

But  no  lawful  act,  done  by  the  landlord  upon  an  adjoining  estate 
owned  by  him,  for  the  purpose  of  improving  that  estate,  and  not 
for  the  purpose  of  depriving  the  tenant  of  the  enjoyment  of  any 
part  of  the  demised  premises,  can  be  deemed  an  eviction.  Tlie  mere 
fact  that  by  an  act  or  default  of  the  landlord,  not  uidawful  in  itself, 


348  ROYCE    V.   GUGGENHEIM  [CHAP.   VI 

nor  accompanied  with  any  intention  to  effect  the  enjoyment  of  the 
premises  demised,  they  have  been  rendered  uninhabitable  is  not 
sufficient.  It  is  now  well  settled,  both  here  and  in  England,  that  in 
a  lease  of  a  building  for  a  dwelling-house  or  store,  no  covenant  is 
implied  that  it  should  be  fit  for  occupation.  Hart  v.  Windsor,  12 
M.  &  W.  68;  Button  v,  Gerrish,  9  Cush.  89;  Foster  v.  Peyser,  lb. 
242 ;  Welles  v.  Castles,  3  Gray,  323.  And  the  English  authorities, 
ancient  and  modern,  are  conclusive,  that  even  where  the  landlord 
is  bound  by  custom  or  express  covenant  to  repair,  and  by  his  failure 
to  do  so  the  premises  become  uninhabitable,  or  unfit  for  the  purposes 
for  which  they  were  leased,  the  tenant  has  no  right  to  quit  the  prem- 
ises, or  to  refuse  to  pay  rent  according  to  his  covenant,^  but  his 
only  remedy  is  by  action  for  damages.  14  Hen.  IV.  27,  pi.  35;  27 
Hen.  YI.  10,  pi.  6;  Bro.  Ab.  Dette,  18,  72.  Parke,  B.,  in  12  M.  &  W. 
84;  Surplice  v.  Farnsworth,  7  Man.  &  Gr.  576;  Kramer  v.  Cooh,  7 
Gray,  550;  Leaviit  v.  Fletcher,  10  Allen,  119,  121. 

In  the  recent  English  case  of  Upton  v.  Toivnend,  17  C.  B.  30,  after 
elaborate  arguments  upon  the  question,  all  the  judges  substantially 
agreed  upon  the  definition  of  eviction.  Chief  Justice  Jervis  said: 
"  I  think  it  may  now  be  taken  to  mean  this :  not  a  mere  trespass 
and  nothing  more,  but  something  of  a  grave  and  permanent  charac- 
ter, done  by  the  landlord  with  the  intention  of  depriving  the  tenant 
of  the  enjoyment  of  the  demised  premises."  Mr.  Justice  Williams 
said :  "  There  clearly  are  some  acts  of  interference  by  the  landlord 
with  the  tenant's  enjoyment  of  the  premises,  which  do  not  amount 
to  an  eviction,  but  which  may  be  either  mere  acts  of  trespass,  or 
eviction,  according  to  the  intention  with  which  they  are  done.  If 
these  acts  amount  to  a  clear  indication  of  intention  on  the  land- 
lord's part  that  the  tenant  shall  no  longer  continue  to  hold  the 
premises,  they  would  constitute  an  eviction."  Mr.  Justice  Crowder 
said  :  "  Eviction,  properly  so  called,  is  a  wrongful  act  of  the  land- 
lord, which  operates  the  expulsion  or  amotion  of  the  tenant  from 
the  land.  The  question  here  is,  w^hether  there  has  been  an  evic- 
tion as  it  is  popularly  called,  a  putting  out  or  depriving  the  tenants 
of  the  subject-matter  of  the  demise."  And  Mr.  Justice  "Willes  said : 
"  If  the  plaintiff  is  liable  for  what  has  been  done,  does  it  amount  to 
an  eviction?  I  am  of  opinion  that  it  does,  as  being  an  act,  of  a 
permanent  character,  done  by  the  landlord  in  order  to  deprive, 
and  which  had  the  effect  of  depriving,  the  tenant  of  the  use  of  the 
thing  demised,  or  of  a  part  of  it."  The  act  of  the  landlord  which 
was  there  held,  upon  a  statement  authorizing  the  court  to  draw  such 
inferences  as  a  jury  might,  to  amount  to  an  eviction,  was  the  re- 
building of  the  tenements  upon  their  destruction  by  fire  (which  the 

1  But  see  Lew/?  v.  Chisholm.  68  Ga.  40;  Bifisd  v.  Lloyd,  100  111.  214; 
Dolph  V.  Barry,  165  Mo.  App.  659;  Shcarij  v.  Adams,  18  Hun.  (N.  Y.)  181 
(statute);  MrCardell  v.  Williams,  19  R.  I.  701,  ante,  p.  263;  4  A.  L.  R.  1462 
note. 


SECT.    lUJ  ROYCE    V.   GUGGENHEIM  349 

lessor  had  covenantod  to  do)  in  such  a  manner  as  permanently  to 
alter  the  character  of  the  demised  premises. 

In  a  still  later  case,  where  the  tenant,  being  desirous  to  underlet 
put  in  a  man  to  show  the  rooms,  and  posted  in  the  window  a  bill 
stating  that  they  were  to  be  let;  and'  the  landlord,  being  annoyed 
by  this  proceeding  and  by  the  conduct  of  the  man,  turned  him  out 
of  the  house  and  took  down  the  bill,  but  left  the  keys  in  the  rooms' 
and  the  tenant  did  not  return,  and  contended  that  he  had  been 
evicted,  and  therefore  was  not  liable  for  the  rent,  —  it  was  ruled 
at  nisi  prius,  and  affirmed  by  the  Court  of  Queen's  Bench  upon  a 
motion  for  a  new  trial,  that  it  was  a  question  for  the  jury,  whether 
the  act  of  the  landlord  was  done  with  the  intention  of  evicting  the 
tenant,  or  simply  for  the  purpose  of  expelling  the  man  whom  he  had 
put  in;  and,  the  verdict  being  for  the  landlord,  the  court  refused 
to  set  it  aside.  Henderson  v.  Mears,  1  Fost.  &  Finl.  636;  s.  c.  28 
L.  J.  N".  S.  Q.  B.  305 ;  5  Jur.  ¥.  S.  709 ;  7  Weekly  Rep.  554. 

It  was  argued  for  the  defendant,  in  the  present  case,  that  even 
the  erection  of  a  building  by  the  landlord  upon  adjoining  land  would 
be  an  eviction,  if  it  stopped  the  tenant's  windows;  and  his  counsel 
cited  Dyeft  v.  Pendlefon,  S  Cowen,  727,  in  which  the  New  York 
Court  of  Errors  held  that  the  creation  of  a  nuisance  by  the  landlord 
in  another  tenement  under  the  same  roof,  by  bringing  lewd  women 
into  it,  who  made  a  great  noise  and  disturbance  there  at  night,  in 
consequence  of  which  the  lessee  and  his  family  left  the  demised 
premises,  was  evidence  to  go  to  the  jury  under  a  plea  of  eviction. 
Upon  that  case,  it  is  to  be  observed,  1st.  The  act  of  the  landlord 
was  an  unlawful  act,  and  not  a  lawful  use  of  his  other  tenement; 
2d.  The  decision  of  the  Court  of  Errors  Avas  not  that  the  facts  in 
law  amounted  to  an  eviction,  but  only  that  they  should  have  been 
submitted  to  the  jury;  3.  That  decision  reversed  the  unanimous 
judgment  of  the  Supreme  Court,  as  reported  in  4  Cowen,  581 ;  4th. 
It  has  since  been  considered,  even  in  New  York,  an  extreme  case. 
Ravage,  C.  J.,  in  Etheridge  v.  Oshorn,  12  Wend.  529,  532.  Nelson, 
C.  J.,  in  Ogilvie  v.  null,  5  Hill,  52,  54.  Bronson,  C.  J.,  in  Gil- 
hnoJei/  V.  Washingfnn.  4  Comst.  217,  219.  In  Palmer  v.  Wetmore, 
2  Sandf.  316,  the  Superior  Court  of  the  city  of  New  York,  consist- 
ing of  Chief  Justice  Oakley  and  Justices  Vanderpool  and  Sandford, 
adjudged  that  the  mere  fact  of  the  erection  of  a  building  by  a  land- 
lord on  his  adjoining  land,  so  as  to  obstruct  and  darken  the  tenant's 
windows,  was  not  an  evictioTi.  To  the  same  effect  is  Mi/ers  v.  Grm- 
mel,  10  Barb.  537.  See  also  the  learned  opinion  of  Judge  Daly 
in  Edqerinn  v.  Page.  1  Hilton,  320;  s.  c.  20  N.  Y.  2S1.  We  cannot, 
therefore,  rest  our  judgment  in  the  case  at  bar  upon  that  of  Di/eH 
V.  Pendlefon.    Nor  is  it  necessary  so  to  do. 

The  lease  from  the  plaintiff  to  the  defendant  was  of  a  house  and 
shop,  and  contained  no  express  covenant  on  the  part  of  the  land- 
lord.    By  the  law  of  this  Commonwealth,  no  easement  of  light  and 


350  WADE    V.    HERNDL  [CHAP.   VI 

air  exists  over  adjoining  lands  unless  by  express  grant  or  covenant. 
Collier  v.  Pierce,  7  Gray,  18;  Rogers  v.  Sawin,  10  Gray,  376;  Brooks 
V.  Reynolds,  106  Mass.  31.  If  the  plaintiff  had  conveyed  away  the 
adjoining  estate,  the  grantee  might  have  built  thereon  so  as  to  stop 
up  the  defendant's  windows,  without  affording  the  latter  any  right 
of  action  for  damages,  or  of  suspension  or  abatement  of  his  rent. 
And  so  if  the  landlord  himself  erected  a  building  upon  any  part  of  the 
adjoining  estate,  for  the  purpose  of  improving  that  estate,  it  was 
a  lawful  act,  which  violated  no  obligation  which  he  was  under  to 
the  defendant,  and  did  not  constitute  an  eviction.^  If,  on  the  other 
hand,  such  an  act  was  done  by  the  landlord  for  the  purpose  and  with 
the  effect  of  making  the  defendant's  tenement  or  any  room  therein 
uninhabitable,  the  defendant  might  perhaps  at  his  election  treat  it 
as  an  eviction,  and  give  up  the  premises  and  refuse  to  pay  rent.  At 
any  rate  he  might  do  so,  if  the  building  was  erected  upon  part  of 
the  curtilage  included  in  his  lease,  closing  the  windows  of  his 
dwelling-house  so  as  to  make  a  part  of  it  uninhabitable;  because 
that  would  be  the  erection  of  a  permanent  structure  on  part  of 
the  demised  premises,  materially  changing  the  character  and  bene- 
ficial enjoyment  thereof;  and  in  such  case  the  landlord  would  be  re- 
sponsible for  the  effect  of  his  wrongful  act,  without  further  proof 
of  unlawful  intent.     Upton  v.  Toivnend,  17  C.  B.  30,  above  cited. 

Applying  these  principles  to  the  bill  of  exceptions,  we  are  of 
opinion  that  the  plaintiff  fails  to  show  that  he  was  aggrieved  by  the 
instructions  given  at  the  trial.  Under  those  instructions,  the  jury 
must  have  found  that  by  the  plaintiff's  erection  of  a  new  building 
in  the  back  yard  against  the  house,  without  the  tenant's  consent, 
two  of  the  rooms  therein,  previously  used  as  a  kitchen  and  bedroom, 
were  made  entirely  unfit  for  those  purposes,  and  by  reason  of  that 
unfitness  were  abandoned.  The  bill  of  exceptions  does  not  show 
that  the  plaintiff  contended  that  the  rooms  could  have  been  used  for 
any  other  purpose  after  the  erection  of  the  new  building,  or  that  the 
back  yard  was  not  part  of  the  demised  premises,  or  made  any 
question,  or  asked  for  any  ruling,  as  to  the  intention  with  which 
he  erected  that  building.  Exceptions  overruled.^ 


WADE  V.  HERNDL 
127  Wis.  545.    1906. 

Appeal  from  a  judgment  of  the  superior  court  of  Milwaukee 
county:  J.  C  Ludwig,  Judge.    Ajfirmed. 

By  a  lease  executed  and  delivered  on  October  14,  1001,  plaintiff 
leased  defendant,  from  that  time  until  May  1,  1903,  "  in  the  city 

1  And  see  Keating  v.  Springer,  146  111.  481,  493.  But  compare  Drmton  v. 
Sweet.  210  Mich.  525.    Cases  are  collected  in  12  A.  L.  R.  163  note. 

2  See  Sherman  v.  WiUiams,  113  Mass.  481. 


SECT.    Ill]  WADE    V.    HERNDL  351 

of  Milwaukee,  .  .  .  one  large  front  room,  ...  to  be  occupied  for  an 
art  studio  and  for  no  other  purpose  whatever,"  at  a  rental  of  $18 
per  month.  Defendant  paid  the  rent  up  to  and  including  the  month 
of  December,  1902.  Plaintiff  sets  up  two  causes  of  action,  the  first 
being  for  the  unpaid  rent  for  the  months  of  1903  w^hich  is  due  under 
the  lease,  and  for  a  second  cause  of  action  plaintiff  sets  up  a  contract 
with  defendant  for  the  heating  of  the  room  leased  from  October  1, 
1902,  to  May  1,  1903,  for  $35.  August  1,  1902,  the  first  floor  of 
the  building,  under  the  defendant's  studio,  was  occupied  by  an 
automobile  company  under  a  lease  from  plaintiff.  Defendant 
alleges  that  she  refuses  to  pay  rent  as  provided  by  the  lease  on 
account  of  the  shaking  and  vibration  of  the  building  and  her  room, 
caused  by  the  operation  of  automobiles  in  the  building  and  under  her 
apartment.  She  claims  that  she  was  thereby  prevented  from  con- 
ducting her  vocation  and  business  as  an  artist,  and  through  the  fault 
of  the  plaintiff  in  leasing  to  and  permitting  the  automobile  company 
to  use  part  of  the  building  as  an  automobile  livery  she  was  com- 
pelled to  leave  the  premises  before  her  lease  expired.  The  heating 
plant  by  which  plaintiff  proposed  to  supply  defendant  with  heat 
and  which  forms  the  basis  for  the  second  ground  of  action  was  not 
completed  until  November  1,  1902.  Defendant  claimed  that  it  was 
insufficient,  and  she  continued  to  heat  her  room  by  a  stove.  No  error 
is  claimed  as  to  this  claim  on  this  appeal.  Defendant  alleges  that 
as  a  result  of  her  eviction,  through  plaintiff's  fault  in  rendering 
the  room  unsuitable  for  the  purposes  for  which  it  was  leased  to  her, 
she  has  sustained  damages  for  which  she  counterclaims  in  this  action. 
She  alleges  that  the  shaking  of  the  building,  caused  by  the  conduct 
of  the  automobile  business  below  her,  broke  and  completely  destroyed 
a  glass  Christ  head  which  she  had  painted  and  which  was  valued  at 
$125.  She  claims  that  the  expense  of  moving  and  installing  herself 
in  her  new  studio  amounted  to  $26,  and  she  also  demands  compen- 
sation in  the  sum  of  $30  for  the  loss  of  a  week's  time.  The  verdict 
of  the  jury  disallowed  all  of  the  claims  of  the  plaintiff  and  found  for 
the  defendant  for  the  full  amount  ccJunterclaimed.  Judgment  was 
accordingly  entered  in  defendant's  favor  for  $181  damages  and  $57.97 
costs.     This  is  an  appeal  from  such  judgment. 

SiEBECKER,  J.  The  law  governing  the  rights  and  liabilities  of  land- 
lord and  tenant,  in  cases  wherein  the  tenant  asserts  eviction  from  the 
premises,  is  that  actual  expulsion  is  not  necessary,  but  that  any 
act  of  the  l.'nidlord  or  of  any  one  who  acts  under  authority  or  legal 
right  given  him  by  the  landlord  which  so  disturbs  the  teiuint's  enjoy- 
ment of  the  premises  as  to  render  them  unfit  for  occupancy  for  the 
purposes  for  which  they  are  leased,  is  an  eviction,  and,  whenever  it 
takes  place,  the  tenant  is  released  from  the  obligntion  under  the  lease 
to  pay  rent  accruing  thereafter.  Hallir/an  v.  Wade.  21  Til.  470; 
/^ilber  v.  Larl-in.  94  Wis.  9,  68  N.  W.  406;  Fridgeon  v.  Excelsior 
Boat  Chih,  66  Mich.  326,  33  N.  W.  502;  2  Wood,'Landl.  &  T.  (2d. 
ed.,)  §  477. 


352  WADE    V.    HERNDL  [CHAP.   VI 

The  jury  Avere  instructed  that  if  tlioy  found  "  from  the  evidence 
that  the  vibration  or  shaking  of  the  building  in  which  defendant's 
studio  was  situated,  which  were  caused  by  the  conduct  of  the  auto- 
mobile company,  were  such  that  the  defendant  was  thereby  prevented 
from  properly  carrying  on  her  work  as  a  glass  painter,  and  her  paint- 
ings thereby  became  liable   to  be  damaged  or  destroyed,  and   said 
premises  thereby  made  unfit  for  the  purpose  of  an  art  studio,  so 
that  she  had  to  abandon  the  same,"  then  the  defendant,  as  lessee,  was 
evicted  from  the  premises.     Under  this  instruction  the  jury  found 
that  she  had  been  evicted.     The  question  then  arises :   What  party  is 
responsible  for  the  injury  thus  occasioned  to  the  defendant?     The 
trial  court  instructed  the  jury  that  plaintiff  was  responsible,  upon 
the  ground  that  "under  the  evidence  in  this  case  the  presumption 
stands   uncontradicted    that    the   automobile   company,    under    their 
lease,  had  a  right  to  test  their  machines  and  to  do  what  they  did, 
so  far  as  the  evidence  shows."     This  instruction  is  assailed  as  not 
warranted  by  the  evidence.     It  is  claimed  that  it  is  shown  that  the 
vibration  and  shaking  complained  of  by  the  defendant  as  causing  her 
injury  was  due  to  the  unusual  conduct  of  those  conducting  the  auto- 
mobile  business,    and   it    is   therefore   not    attributable   to   plaintiif 
under  the  authority  given  by  the  lease.    It  appears  that  the  testing 
of  automobiles  caused  the  trembling  complained  of.     This  consisted 
in  running  the  engines  of  different  machines  which  were  stored  in 
the  company's  show  room,  and  in  starting  the  engine  of  any  auto 
car  to  ascertain  whether  it  was  in  proper  running  order  and  ready 
for  use.     Such  testing  was  an  incident  to  the  regular  conduct  of  the 
business  of  the  establishment  and  was  not  confined  to  engines  under- 
going repairs  in  the  shop.     Defendant's  room  was  located  over  that 
part  of  the  display  room  where  this  testing  was  done.      There  is 
nothing  to  show,  and  the  trial  court  so  held,  that  this  testing  was 
unnecessary   or   unusual,   but   it   appeared    that   under   the   circum- 
stances it  was  a  necessary  part  of  the  conduct  of  the  business.     It 
must,  therefore,  have  been  within  the  contemplation  of  the  parties 
when  the  lease  of  the  premises'was  made.    The  evidence  also  discloses 
that,  upon  the  complaint  of  defendant  concerning  this  disturbance 
in  her  room,  plaintiff  investigated  the  matter  and,  at  the  request  of 
the  parties  conducting  the  automobile  business,  came  to  the  defend- 
ant's room  to  observe  the  effect  of  such  testing.     He  claimed  and 
asserted  that  such  testing  did  not  interfere  with  defendant's  use  of  her 
room,  and  he  did  not  thereafter  take  any  steps  to  prohibit  the  com- 
pany from  continuing  to  make  the  tests.     Under  these  facts  and  cir- 
cumstances the  court  did  not  err  in  holding  that  the  acts  of  those  in 
charge  of  the  automobile  business  were  within  the  rights  granted 
them  by  plaiptiff  under  the  lease  to  occupy  and  use  the  premises  to 
conduct  an  automobile  business.     This  presumption  stands  without 
substantial  contradiction  in  the  evidence.     It  must  follow  that  the 
instructions  upon  this  branch  of  the  case  were  correct  and  that  the 
court  properly  rejected  those  requested  by  the  plaintiff. 


SECT.    Ill]  HOPKINS    V.    MURPHY  353 

It  is  contended  that  the  court  erred  in  striking  out  that  part  of 
the  defendant's  testimony  appertaining  to  the  value  of  the  broken 
picture  to  her  individually,  as  a  design,  apart  from  its  market 
value.  Tlu!  measure  of  damages  is  the  pecuniary  loss  suffered  by  the 
breakage,  and  that  would  be  the  diminution  in  the  market  value  of 
the  article  injured.  The  evidence  so  stricken  out  had  no  bearing  on 
the  market  value,  and  the  court  properly  excluded  all  such  evidence. 
The  evidence  on  the  subject  tended  to  show  that  the  picture  had  no 
market  value  after  it  was  broken,  and  justified  the  inference  that  de- 
fendant was  damaged  in  the  amount  claimed. 

Another  exception  argued  is  to  the  allowance  of  expenses  incurred 
in  removing  from  the  premise.  It  is  thereby  assumed  that  defendant 
would  have  been  compelled  to  incur  a  like  expense  at  the  expiration 
of  her  tenancy,  and  that  she  cannot  be  deemed  to  have  been  damaged 
by  paying  it  at  the  time  she  did.  This  assumption  is,  however, 
conjectural,  for  it  is  far  from  certain  that  like  expenses  Avould  have 
been  incurred  at  the  expiration  of  the  tenancy.  If  she  had  occupied 
the  premises  until  the  expiration  of  her  lease,  various  contingencies 
might  have  arisen  whereby  these  expenses  might  have  been  avoided. 
This  element  of  damages  must  be  held  to  have  resulted  from  the 
wrongful  eviction.  Her  loss  of  time  in  her  employment  on  account 
of  such  removal  is  likewise  a  proper  element  of  recovery  resulting 
from  the  breach  of  the  obligation. 

Exemption  from  liability  is  asserted  by  plaintiff  under  the  pro- 
vision of  the  lease  wherein  it  is  stipulated  that  the  lessor  shall  not 
be  liable  for  any  damage  occasioned  by  or  from  acts  particularly 
mentioned,  among  which  are  specified  "  acts  or  neglect  of  cotenants 
or  other  occupants."  It  is  obvious  that  this  exemption  does  not 
apply  to  the  acts  or  neglect  of  such  parties  authorized  or  committed 
under  any  right  given  by  the  plaintiff  as  lessor  of  the  premises. 
jAftnr  pxaniination  of  the  errors  assigned  we  are  led  to  the  conclusion 
thf  t  th"re  is  no  error  in  the  respects  alleged. 

By  the  Court.  —  J^ulgynpnt  affirmed.^ 


KOPKIXS,  TRUSTEE  v.  MURPHY 

233  Mass.  476.     1919. 

Contract,  brought  by  the  plaintiff,  as  trustee,  on  a  covenant 
to  pay  rent  in  a  lease  of  the  upper  of  two  suites  in  a  house  num- 
bered 67  on  Winthrop  Road  in  Rrookline,  to  recover  rent  for  the 
months  of  February,  March  and  .\pril,  lOlfi.  at  the  rate  of  $79.17 
per  month.  Writ  in  the  Municipal  Court  of  the  City  of  Boston 
dated  April  4.  1016. 

■1  Compare  Bnafon  Ferrule  Cn.  v.  HiUf<,  l.W  Ma.«s.  147;  Barrel  v.  Lawton. 
90  N.  Y.  29r):   To;/  v.  Olincjer,  181  N.  W.  (Wi.'^.)   29.'i. 


354  HOPKINS    V.    MURPHY  [CHAP.   VI 

The  answer,  among  other  things,  alleged  that  before  the  rent 
mentioned  in  the  plaintiff's  declaration  became  due  the  defendant 
was  evicted  from  the  premises  by  the  plaintiff  "  permitting  large 
numbers  of  vermin  or  roaches  to  invade  said  premises  or  a  sub- 
stantial part  thereof  and  to  continue  therein,  rendering  the  prem- 
ises impossible  and  dangerous  for  use  for  the  purposes  for  which 
rented." 

On  removal  to  the  Superior  Court  the  case  was  tried  before 
Keating,  J.  The  evidence  is  described  in  the  opinion.  At  the 
close  of  the  evidence  the  plaintiff  moved  that  a  verdict  be  ordered 
in  his  favor.  The  judge  granted  the  motion  and  ordered  a  ver- 
dict for  the  plaintiff  in  the  sum  of  $276.28.  At  the  request  of  the 
parties  the  judge  reported  the  case  for  determination  by  this  court. 

If  the  ordering  of  the  verdict  was  right,  judgment  was  to  be 
entered  for  the  plaintiff  on  the  verdict;  otherwise,  judgment  was 
to  be  entered  for  the  defendant. 

The  case  was  submitted  on  briefs. 

Crosby,  J.  This  is  an  action  to  recover  rent  under  a  written 
lease  of  the  upper  suite  in  a  two-family  house.  The  defendant 
denies  liability  and  contends  that  he  was  constructively  evicted 
from  the  premises  by  reason  of  the  presence  in  the  suite  of  large 
numbers  of  "  roaches,"  rendering  it  unfit  for  occupancy.  We  under- 
stand that  "  roaches "  as  described  in  the  record  are  what  are 
commonly  known  as  "  cockroaches :"  There  was  no  evidence  to 
show  that  there  were  any  cockroaches  in  the  leased  premises  until 
about  December  1,.  1915, —  more  than  two  years  after  the  defend- 
ant's occupancy  began.  It  appeared  that  as  soon  as  the  plaintiff 
was  notified  by  the  defendant  of  their  presence,  he  sent  a  man 
to  the  house  to  destroy  them,  but  his  efforts  in  that  direction  were 
not  successful. 

It  is  well  settled  that  in  a  lease  of  real  estate  no  covenant  is 
implied  that  it  should  be  fit  for  occupation;  and  this  is  true  of  a 
lease  of  a  building  for  a  dwelling-house.  Royce  *v.  Guggenheim, 
106  Mass.  201,  202.  Pomeroy  v.  Tyler,  9  N.  Y.  St.  Rep.  514. 
Murray  v.  Alberfson,  21  Vrooni,  167.  In  the  absence  of  an  ex- 
press agreement  between  the  parties  or  of  fraudulent  representa- 
tions or  concealment  by  the  lessor,  the  lessee  takes  the  demised 
premises  as  they  exist  and  the  rule  of  caveat  emptor  applies.  Sl:ally 
V.  Skute,  132  Mass.  367.  Bothe  v.  Adams,  185  Mass.  341.  To 
constitute  a  constructive  eviction,  it  must  appear  that  by  his 
intentional  and  wrongful  act  the  landlord  has  deprived  the  tenant 
of  the  beneficial  use  or  enjoyment  of  the  whole  or  a  part  of  the 
leasehold.  Smith  v.  McEnany,  170  Mass.  26.  Taylor  v.  Finnigan, 
189  Mass.  568.  Voss  v.  Sylvester,  203  Mass.  233.  Nesson  v.  Adams, 
212  Mass.  429. 

The  record  shows  that  the  demised  premises  were  in  a  new 
building  and  had  not  been  occupied  before  the  defendant's  tenancy 


SECT.   Ill]  NEALE    V.    MACKENZIE  355 

began,  and  that  no  cockroaches  were  seen  there  by  the  defendant 
until  more  than  two  years  thereafter.  There  is  nothing  to  in- 
dicate that  the  plaintiff  was  responsible  for  the  presence  of  the 
insects  or  that  he  failed  in  any  duty  which  he  owed  to  the  de- 
fendant. His  unsuccessful  attempt  to  exterminate  them  could  not 
be  found  to  be  a  constructive  eviction  of  the  defendant.  Every- 
body knows  that  cockroaches,  ants  and  other  objectionable  insects 
will  sometimes  appear  in  dwelling  houses  to  the  annoyance  of 
the  occupants.  It  is  manifest  that  the  plaintiff  was  not  responsi- 
ble for  the  presence  of  the  cockroaches  and  that  he  did  nothing 
with  the  intention  and  effect  of  depriving  the  defendant  of  the  de- 
mised premises.  Under  such  circumstances  the  evidence  would  not 
warrant  a  finding  that  there  was  an  eviction.  The  fact  that  the 
landlord,  upon  notice  from  the  tenant,  attempted  to  remedy  existing 
conditions,  was  a  gratuitous  act,  and  was  not  evidence  of  an  eviction. 
McKeon  v.   Cutter,  156  Mass.   296,  298. 

There  was  evidence  that  before  the  defendant  vacated  the  tene- 
ment the  plaintiff  learned  there  were  cockroaches  in  the  lower  suite, 
occupied  by  another  tenant.  When  he  received  this  information  does 
not  appear.     It  is  not  evidence  of  a  constructive  eviction. 

The  cases  relied  on  by  the  defendant  where,  by  some  act  of  the 
landlord  of  a  permanent  character  or  by  reason  of  false  representa- 
tions at  the  time  of  the  letting,  the  lessee  was  deprived  of  the  bene- 
ficial enjoyment  of  the  demised  premises,  are  plainly  distinguishable 
from  the  case  at  bar.  Royce  v.  Guggenheim,  supra.  Sherman  v. 
Williams,  113  Mass.  481.     Sl'alJy  v.   Shute,  supra. 

In  accordance  with  the  report,  judgment  is  to  be  entered  for  the 
plaintiff  on  the  verdict  for  $276.28  with  interest  to  February  27, 
1919.  So  ordered.'' 


NEALE  V.  MACKENZIE 
1  M.  &  W.  747.    1836. 

"Writ  of  error  on  the  judgment  of  the  Court  of  Exchequer,  re- 
ported 2  C.  M.  k  R.  84. 

Lord  Denman,  C.  J.-  This  is  an  action  of  trespass  for  entcriiiu' 
the  plaintiff's  dwelling-house,  and  taking  his  goods. 

1  "Whore  'an  intolerable  condition  which  the  tenant  neither  causes  nor 
can  remedy '  arises,  there  has  been  held  in  New  York  to  be  constructive 
eviction  from  an  apartment  irrespective  of  the  landlord's  causation  of  the 
condition  or  liability  in  damages  for  it."  2  Williston.  Contracts,  §  892. 
Barnard  Realty  Co.  v.  Bonirit.  155  App.  Div.  (N.  Y.)  182.  And  see  Mad- 
den V.  Bullock,  115  N.  Y.  Supp.  723;  Streep  v.  Simp.<<on,  80  Miscel.  (N.  Y.) 
666.  But  see  Pomcroy  v.  Tyler,  9  N.  Y.  St.  Rep.  514;  Jacobs  v.  Morand, 
59  Miscel.  (N.  Y.)  200.  Compare  Stewart  v.  Lawson,  199  Mich.  497;  4 
A.  L.  R.  1463  note. 

-  The  opinion  only  is  given. 


356  NEALE    V.    MACKENZIE  [CHAP.   VI 

The  doclaration  is  dated  the  25th  of  April,  1834.  The  defendant, 
on  the  24th  of  May,  1834,  pleaded  that  he,  being  seised  of  the  dwell- 
ing-house and  certain  other  premises,  demised  the  same  to  the  plain- 
tiff for  one  year  from  the  25th  of  June,  1833,  at  the  rent  of  £70, 
payable  quarterly ;  that  the  plaintiff  accepted  the  lease,  and,  by  virtue 
of  the  said  demise,  entered  into  and  upon  the  said  demised  premises, 
and  thereupon  became  and  yet  was  possessed  thereof  for  the  said 
term  so  granted  to  him  as  aforesaid ;  and,  until  the  25th  of  December, 
1833,  and  from  thence  until  and  at  the  time  when,  &c.,  held  and 
enjoyed  the  dwelling-house  and  premises  by  virtue  of  the  said  de- 
mise; that  on  the  said  25th  of  December,  1833,  £35  of  the  rent  was 
in  arrear,  wherefore  the  defendant  entered  and  made  a  distress  of 
the  same. 

The  plaintiff,  on  the  6th  of  December,  1834,  replied  that  one 
Adam  Charlton,  before  the  demise  in  the  plea  mentioned,  and  from 
thence  and  still  was  in  possession  of  eight  acres  of  land  of  the  said 
demised  premises,  under  and  by  virtue  of  a  demise  theretofore  made 
by  the  defendant  to  him,  which  demise  was  then  and  from  thence 
had  been  and  stiU  ivas  in  full  force  and  undetermined,  whereby  the 
plaintiff  did  not  and  could  not  enter  into  the  possession  of,  or  hold 
or  enjoy  the  said  last-mentioned  land,  so  being  parcel  of  the  demised 
premises  in  the  plea  mentioned;  and  although  he  had  been  willing 
and  desirous  of  entering,  he  had  been  kept  out  of  possession  by 
Adam  Charlton  by  virtue  of  the  demise  to  him,  and  the  plaintiff 
had  been  prevented  from  holding  and  receiving  the  profits. 

The  rejoinder  alleges  that  the  plaintiff,  at  the  time  of  his  entering 
on  the  demised  premises,  had  notice  that  Adam  Charlton  was  in 
possession  of  the  eight  acres  as  tenant  to  the  defendant,  under  a 
demise  for  a  term  then  unexpired. 

To  this  rejoinder  there  is  a  special  demurrer,  for  inconsistency 
with   the   plea    and    departure   therefrom. 

The  question  to  be  determined  is,  whether  the  replication  be  an 
answer  to  the  plea. 

It  has  been  argued  that  the  impediment  tb  the  plaintiff's  obtain- 
ing possession  of  the  eight  acres  demised  to  Adam  Charlton  by  the 
defendant  previously  to  the  demise  made  to  the  plaintiff,  is  in  the 
nature  of  an  eviction.  On  one  side  it  is  contended  that  it  is  analo- 
gous to  an  eviction  by  title  paramount,  the  right  of  Adam  Charlton 
being  prior  to  the  demise  made  by  the  lessor,  and  to  the  title  acquired 
under  that  demise  by  the  lessee;  and  on  the  other  side,  that  it  is 
analogous  to  an  eviction  by  the  tortious  act  of  the  lessor,  since  the 
impediment  arises  from  the  wrongful  act  of  the  lessor  himself  in 
demising  land  which  he  had  already  parted  with;  and  is  not  to 
be  distinguished  in  principle  from  the  case  of  an  entry  upon  the 
lessee  under  a  demise  made  by  the  lessor  to  a  stranger  immediately 
after  possession  taken  by  the  lessee. 

If  the  former  of  these  views  be  adopted,  the  rent  will  be  apportion- 


SECT.    Ill]  NEALE    V.    MACKENZIE  357 

able,  and  the  distress  justified  hy  the  plea:  for  it  is  clear  that  a 
person  may  distrain  for  apportionable  rent;  and,  if  the  defendant 
was  entitled  to  distrain  at  all,  the  action  of  trespass  cannot  be 
maintained.  If  the  latter  view  be  correct,  the  defendant  was  not 
entitled  to  distrain  at  all,  so  long  as  the  plaintiff  was  kept  out  of 
possession  of  any  part  by  his  wrongful  act. 

But,  we  are  of  opinion  that  the  impediment  to  the  plaintiff's  tak- 
ing possession  in  this  case,  is  not  analogous  to  an  eviction:  for  it 
appears  to  us  that  no  interest  in  the  eight  acres  previously  demised 
to  Adam  Charlton  passed  to  the  plaintiff"  by  the  demise  subsequently 
made  to  him.  The  demise  to  Adam  Charlton  covered  the  whole 
time  during  which  the  rent  distrained  for  accrued. 

But  it  has  been  supposed,  that  notwithstanding  the  demise  to 
Adam  Charlton,  by  which  the  defendant  had  parted  with  his  right 
of  possession  in  the  eight  acres,  the  plaintiff  by  his  subsequent  lease 
took  an  interesse  termini  in  these  eight  acres  for  the  period  of  his 
own  lease,  viz.,  one  year,  so  as  to  give  him  a  right  to  a  term  for  all 
that  period,  and  to  the  possession  on  the  determination  of  the  prior 
lease  by  efflux  of  time,  or  by  any  other  lawful  mode,  whenever  and 
in  whatever  way  it  should  be  determined;  and  that  the  existence 
of  the  prior  demise  being  the  impediment  by  which  alone  the  plain- 
tiff was  prevented  from  obtaining  possession  under  the  demise  to  him, 
the  case  must  be  governed  by  the  same  i)rin('iple  as  that  of  an  evic- 
tion by  title  paramount :  and,  if  any  interest  in  the  eight  acres 
did  pass  to  the  plaintiff  under  the  demise  to  him,  we  might  possibly 
be  disposed  to  accede  to  this  view  of  the  case;  considering  that 
eviction  by  title  paramount  means  eviction  by  a  title  superior  to 
the  titles  both  of  lessor  and  lessee;  against  which  neither  is  enabled 
to  make  a  defence. 

It  appears  to  us,  however,  upon  authority  which  we  do  not  feel 
ourselves  at  liberty  to  dispute,  that  the  demise  to  the  plaintiff  of 
the  eight  acres  in  question  was  wholly  void. 

It  has  been  already  observed  that  the  demise  to  Charlton  made 
previously  to  the  demise  to  the  plaintiff,  covers  the  whole  of  the 
plaintiff's  term;  or  at  least  the  whole  period  for  which  the  distress 
was  made.  Now,  it  is  expressly  laid  down  in  Bacon's  Abr.,  Leases 
(ISr.),  (which  is  to  be  considered  as  the  language  of  Lord  Chief 
Baron  Gilbert)  as  follows:  "If  one  make  a  lease  to  A.  for  ten 
years,  and  the  same  day  make  a  parol  lease  to  B.  for  ten  years 
of  the  same  lands,  this  second  lease  is  absolutely  void,  and  can 
never  take  effect  either  as  a  future  interesse  tennini.  or  as  a  rever- 
sionary interest,  though  tlie  first  lessee  should  forfeit  or  otherwise 
determine  his  estate,  or  though  the  first  lease  were  on  condition, 
and  the  condition  broken  within  ten  years;  neither  shall  the  lessor 
have  the  rent  reserved  upon  such  second  lease,  but  sucli  second 
lease  is  absolutely  void,  as  if  none  such  had  been  made.  The  reason 
whereof  is,  because  the  first  lease  being  made  for  ten  years,   the 


358  NEALE    V.    MACKENZIE  [CHAP.   VI 

lessor  during  that  time  had  nothing  to  do  with  the  possession,  or 
to  contract  with  any  other  for  it;  and  the  second  lease  being  made 
the  same  day,  and  for  no  longer  term  than  the  first  ten  years, 
would  not  pass  any  interest  as  a  future  interesse  termini  certainly; 
for  the  first  lessee  had  the  whole  interest  during  that  time;  and  his 
forfeiture  or  determination  of  it  sooner,  which  was  perfectly  con- 
tingent and  accidental,  shall  never  make  good  the  second  lease  as 
a  future  interesse  termini,  when  at  the  time  of  making  thereof  it 
was  absolutely  void  for  want  of  a  power  in  the  lessor  to  contract 
for  it;  and  as  a  reversionary  interest  it  cannot  be  good  for  want 
of  a  deed."  And  a  little  further  on,  "  But  now,  if  such  second  lease 
had  been  made  for  twenty  years,  then  it  had  been  good  as  a  future 
interesse  termini  for  the  last  ten  years,  and  void  for  the  first  ten 
years  for  the  reasons  before  given,  but  for  the  last  ten  years  it 
had  been  good;  because,  when  the  first  ten  years  were  elapsed,  the 
second  lessee  might  then  execute  and  reduce  into  possession  by  entry 
as  well  as  if  it  had  been  at  first  made  in  possession;  for,  it  had  been 
good  for  the  whole  twenty  years  if  the  first  lease  had  not  stood  in 
the  way,  and  that  can  stand  in  the  way  no  longer  than  it  continues, 
and  therefore,  by  its  termination,  lets  in  the  second  lease;  but,  as  a 
grant  of  the  reversion  such  second  lease  could  not  be  good  for  want 
of  a  deed,  for  the  reasons  before  given,  neither  could  any  attorn- 
ment help  it  or  let  in  the  second  lease,  till  the  first  ten  years  ran  out 
by  effusion  of  time."  And  afterwards  it  is  said  that  if,  after  a 
lease  for  ten  years,  a  second  lease  by  deed  poll  were  made  for 
twenty  years,  it  might  take  effect  with  attornment  as  a  grant  of 
the  reversion,  or,  if  no  attornment  could  be  had,  "  yet  it  would 
inure  as  a  future  interesse  termini  for  the  last  ten  years,  and  would 
be  absolutely  void  for  the  first  ten  years,  as  much  as  if  it  had 
been  made  by  parol." 

It  has  been  remarked  that  the  doctrine  here  laid  down  is  derived 
from  the  argument  of  counsel  in  the  case  of  Bracehridge  v.  Clowse, 
in  Plowd.  421 ;  but  it  may  be  answered,  that  although  the  matter 
introduced  into  Bacon's  Abridgement  is  first  distinctly  found  in 
the  argument  set  forth  at  length  in  Plowden,  it  now  stands  upon 
the  authority  of  Lord  Chief  Baron  Gilbert.  Moreover,  the  point 
immediately  under  consideration  in  this  cace  is  confirmed  by  the 
opinion  of  Gawdy,  J.,  in  Dove  v.  Willcot,  Cro.  Eliz.  160,  who  says : 
"  If  a  lease  be  made  for  two  years,  and  after  the  lessor  let  the  land 
for  four  years,  this  is  but  a  lease  for  two  years,  al though  the  first 
lessee  surrender,  for  he  had  no  power  to  contract  for  the  first  two 
years  at  the  beginning;  but  otherwise  when  the  estate  is  determin- 
able upon  an  uncertainty;"  and  cites  Plowd.  Comment.  Smith  and 
Stapleton's  Case,  which  is  the  case  where  the  argument  is  fully 
stated,  —  fo.  432. 

It  may  be  remarked  also  that  in  Comyn's  Digest,  title  Estates 
(G.  13),  it  is  said  that  a  lease  which  cannot  take  effect  in  interest, 


SECT.    Ill]  NEALE    V.    MACKENZIE  359 

except  by  possibility,  if  it  be  not  an  estoppel,  shall  be  void;  as,  if 
tenant  in  fee  leases  by  parol  to  A.  for  nine  years,  and  the  same  day 
to  B.  for  nine  years,  the  lease  to  B.  shall  be  void.  For  this  he  cites 
Plowden,  432;  and  though  this  statemeift  be  only  part  of  the  lan- 
guage of  the  apprentice  who  argued  the  case  of  Smith  v.  Stapleton, 
Chief  Baron  Comyns,  by  introducing  it  in  this  general  way,  must  be 
considered  as  adopting  it  in  some  degree  at  least  as  authority;  in 
v/hat  is  said  by  Gawdy,  as  referred  to  in  Cro.  Eliz.  160,  there  is 
afterwards  added  Smith  v.  Stapleton,  Plow.  426,  though  it  is  not 
clear  whether  this  be  his  language  or  that  of  the  reporter. 

This  same  doctrine,  as  far  as  regards  a  second  parol  lease  for  years 
after  a  former  lease  for  years,  appears  to  have  been  treated  as  clear 
law  in  various  books;  though  the  effect  of  such  a  lease  made  after  a 
prior  lease  for  life,  has  been  the  subject  of  discussion.  See  Bro.  Abr. 
Lease,  pi.  35,  48;  Plowden,  521,  note  of  the  reporter.  Wetchden  v. 
Ell'ington,  Plowd.  521;  Plowden's  Qufcries,  122  and  161;  Sir  Hugh 
Cholmondehy's  Case,  Moore,  344,  in  the  argument  of  Cook,  Attorney- 
General.  So,  in  Watt  v.  Maydewell,  Hutton,  105  :  '^  If  a  man  make'a 
lease  for  twenty-one  years,  and  after  makes  a  lease  for  twenty-one 
years  by  parol,  that  is  merely  void ;  but  if  the  second  lease  had  been 
by  deed,  and  he  had  procured  the  former  lessee  to  attorn,  he  shall 
have  the  reversion."  Edward  v.  Staler,  Hardr.  345,  arguendo.  So, 
Sheppard's  Touchst.  275  b. :  "  If  the  second  lease  be  for  the  same  or 
a  less  time,  as,  if  the  first  lease  be  for  twenty  years,  and  the  second 
lease  be  for  twenty  or  for  ten  years,  to  begin  at  the  same  time,  these 
second  leases  are  for  the  most  part  void; "  but  if  the  second  lease 
be  by  fine,  deed  indented,  or  poll,  it  ma}'^  pass  the  reversion  with 
attornment  when  attornment  is  necessary,  and  without,  if  not  neces- 
sary. But  if  the  second  lease  be  by  word  of  mouth,  it  is  otherwise 
.  .  .  And  if  the  second  lease  be  by  fne,  or  deed  indented,  then  it 
may  work  by  way  of  estoppel  both  against  the  lessor  and  the  lessee; 
so  that,  if  the  first  lease  happen  by  any  means,  as,  by  surrender  or 
otherwise,  to  dotorniine  before  it  be  run  out,  then  the  second  lessee 
shall  have  it."  ^ 

Fpon  these  autliorities,  therefore,  we  feel  ourselves  obliged  to  hold 
that  the  lease  to  the  plaintiff  was  utterly  void,  so  far  as  regarded  the 
eight  acres  demised  to  Charlton. 

If  that  be  so,  we  are  unable  to  distinguish  the  case  in  principle 
from  that  of  Gardiner  v.  Williamson,  2  Barn.  &  Adolph  336,  Avhere 
the  tithes  of  a  parish,  together  with  a  messuage  used  as  a  homestead 
for  collecting  the  tithes,  having  been  demised  by  parol  at  a  rent  of 
£200  per  annvm.  and  a  distress  made  for  arrears,  the  Court  of  King's 
Bench  held  that  an  action  of  trespass  would  lie,  because  the  demise 
of  the  tithes,  being  by  parol,  was  void.     There  Avas  no  valid  demise, 

1  Sec    ErcIfsiastirnJ   Cam'rs   v.    O'Connor,   9    Ir.   C.   L.   212;    Holland   v. 
Vanstonc,  27  U.  C.  Q.  B.  15. 


360  NEALE    V.    MACKENZIE  [CHAP.   VI 

it  was  said,  of  the  whole  subject-matter,  nor  any  distinct  rent  re- 
served for  that  part  of  it  upon  which  there  might  have  been  a  legal 
distress.  That  case  was  the  stronger,  because  it  was  contended  that 
the  whole  rent  must  be  taken  to  be  issuable  out  of  the  corporeal 
hereditament,  upon  which  alone  a  distress  could  be  made.  And 
accordingly,  in  a  case  of  a  lease  by  indenture.  Dyer  is  reported 
to  have  held  (Moore,  50),  that,  if  lands  at  common  law  and  copy- 
hold lands  are  leased  by  indenture  rendering  rent,  all  the  rent  is  issu- 
ing out  of  the  lands  at  common  law,  for  the  lessor  had  no  power  to 
make  such  a  lease  of  copyhold,  wherefore  as  to  this  the  lease  is 
utterly  void;  but  it  is  added,  that  if  a  man  lets  lands,  parcel  of 
which  he  is  seised  of  by  disseisin,  then  the  rent  is  issuing  out  of  all 
the  land,  and  by  the  entry  of  the  disseisee  the  rent  shall  be  appor- 
tioned, because  the  lease  of  this  was  not  void  but  voidable.  In 
this  last  case  the  tenant  took  an  interest,  and  enjoyed  all  the  lands 
demised  till  the  time  of  his  being  evicted  from  a  parcel  thereof  by  the 
disseisee,  and  was  therefore  liable  in  respect  of  such  interest  and  en- 
joyment to  a  portion  of  the  rent.  In  the  case  before  the  court,  which 
is  not  the  case  of  a  demise  by  indenture,  the  rent  is  reserved  in 
respect  of  all  the  land  professed  to  be  demised,  and  to  be  issuing 
out  of  the  whole  and  every  part  thereof;  and  as  the  plaintiff,  as  to 
a  portion  of  the  land  comprised  in  the  demise  (which  might  be  great 
or  small,  as  far  as  the  principle  is  concerned),  has  taken  no  in- 
terest, and  had  no  enjoyment,  and  is  not  bound  by  any  estoppel, 
we  are  of  opinion  that  the  distress  made  by  the  defendant  is  not 
justifiable,  either  in  respect  to  the  whole  rent  reserved  or  any  portion 
of  it. 

It  may  further  be  observed,  that  even  supposing  the  plaintiff  to 
have  taken  an  interesse  termini  in  the  eight  acres,  capable  of  being 
executed  by  entry  in  case  the  demise  to  Charlton  should  happen  to 
be  forfeited  or  surrendered,  yet,  as  that  demise  to  Charlton  was  in 
force  at  the  commencement  of  the  plaintiff's  tenancy,  and  continued 
during  the  whole  period,  in  respect  of  which  the  distress  has  been 
made,  no  demise  of  those  eight  acres  to  the  plaintiff  ever  took 
effect;  and,  consequently,  no  right  to  any  rent  in  respect  of  those 
eight  acres  has  ever  come  into  existence.  And  we  are  not  aware  of 
any  case  where  an  entire  rent  reserved  has  been  held  to  be  appor- 
tionable,  in  which  the  tenant  has  not  been  at  some  period  subject 
to  the  entire  rent  by  virtue  of  the  demise.  Here,  the  right  of  appor- 
tionment is  not  founded  upon  any  eviction,  or  other  matter  occur- 
ring subsequently  to  the  demise,  but  upon  an  original  defect  in  the 
demise  itself  by  which  the  entire  rent  was  reserved.  In  this  respect 
it  is  strictly  analogous  to  Gardiner  v.  Williamson. 

In  the  case  of  Tomlinson  v.  Bay.  5  Moore,  558,  which  has  been 
referred  to,  the  landlord  did  not  claim  an  apportioned  part  of  an 
entire  rent,  either  by  avowry  for  a  distress  or  by  action  for  the  rent. 
It  was  an  action  for  use  and  occupation,  in  which  he  was  allowed  to 


SECT.    Ill]  MCCLURG    V.    PRICE    &    SIMS  361 

make  use  of  an  agreement  for  a  lease  (according  to  tlie  express  pro- 
vision of  the  Statute  11  Geo.  2,  c.  19,  §  14),  "as  evidence  of  the 
quantum  of  damages  to  be  recovered ;  "  and,  as  the  defendant  had 
been  interrupted  in  the  full  enjoyment  of  what  had  been  agreed  for, 
the  plaintiff  was  held  "  entitled  to  recover  a  reasonable  compen- 
sation for  the  property  enjoyed  by  the  defendant  as  an  equivalent 
for  rent."  The  interruption  to  the  defendant's  right  of  exclusive 
sporting  was  indeed  compared  by  Lord  Chief  Justice  Dallas  and 
Mr.  Justice  Richardson  to  an  eviction;  but,  if  it  was  an  eviction, 
it  was  clearly  an  eviction  by  title  paramount.  The  agreement  for 
exclusive  sporting  was  not  void  on  account  of  the  landlord  having 
made  a  prior  agreement  to  let  it  to  some  other  person;  but  it  was 
defeated,  because  other  persons  interfered  who  had  a  right  superior 
to  that  of  the  landlord.  Supposing  the  circumstances,  therefore, 
to  amount  to  an  eviction,  it  would  be  a  case  of  apportionment  accord- 
ing to  the  acknowledged  rule;  and  would  not  assist  the  argument 
in  favor  of  the  defendant. 

Upon  the  whole,  therefore,  we  are  of  opinion  that  the  judgment  of 
the  Court  of  Exchequer  ought  to  be  reversed. 

Judgment  reversed.^ 


McCLURG  V.  PRICE  &  SIMS 
59  Pa.  420.    18G8. 

Before  Thompson,  C.  J.,  Agnew,  Sharswood  and  "Williams,  JJ. 
Read,  J.,  absent. 

Error  to  the  District  Court  of  Allegheny  county:  'Ko.  56,  to 
October  and  November  Term  1868. 

This  was  an  action  of  assumpsit,  commenced  March  26th,  1866. 
by  W.  T.  McClurg  against  Mary  C.  Price  and  "William  II.  Sims, 
trading  as  Price  &  Sims. 

The  first  count  of  the  declaration  averred  that  the  plaintiff,  on 
the  loth  day  of  April  1866,  leased  to  the  defendants  a  Avarehouse 
for  seven  and  a  half  months,  at  the  rate  of  $1500  per  annum,  pay- 
able quarterly,  the  first  quarter  to  be  computed  from  April  1st. 

The  second  count  averred,  that  on  the  20th  of  March  the  defend- 
ants were  indebted  to  the  plaintiff  in  the  sum  of  $900,  for  the  use 

1  Laurrence  v.  French.  25  Wond.  (N.  Y.)  443,  accord.  But  see  O'Brien  v. 
Smith,  13  N.  Y.  Supp.  408;  aff'd  129  N.  Y.  620;  McLonqhUn  v.  Craig,  7  Ir. 
C  L  'll7.  Coniparo  Smith  v.  Barber.  112  A.  D.  (N.  Y.)  187;  For^haw  v. 
Hathaway.  112  Miscrl.  (N.  Y.)   112;   Tunis  v.  Candy.  22  Gratt.  (Va.)   109. 

Exclusion  from  the  whole  of  the  premises  by  one  having  a  paramount 
title  excuses  duty  to  pay  rent.  Duncan  v.  Moloney.  115  111.  App.  522; 
Andrews  v.  Woodcoch,  14  Iowa  397. 

On  exclusion  bv  a  stranger  without  right,  see  Brandt  v.  PhiUippi,  82 
Cal.  640;  2  Tiffany.  Real  Prop..  2d  ed..  p.  1490. 


362  mcclurg  v.  price  «&  sims  [chap,  vi 

and  occupation  of  a  warehouse.     The  declaration  contained  also  the 
common  counts. 

On  the  trial,  before  Hampton,  P.  J.,  the  plaintiff  gave  evidence 
of  the  occupancy  by  the  defendants  of  his  warehouse  and  rested. 
The  defendants  then  called  W.  C.  Eobertson^  who  testified :  That 
a  lease  was  agreed  upon  between  the  plaintiff  and  defendants  for 
the  warehouse  in  question  at  the  annual  rent  of  $1500  per  annum 
for  the  whole  building,  payable  quarterly ;  the  defendants  were  to 
get  possession  of  all  but  the  fourth  and  fifth  stories  on  the  12th  of 
May,  1866,  and  of  the  fourth  and  fifth  whenever  they  should 
want  them.  There  were  some  old  iron,  &c.,  on  tHe  premises 
belonging  to  the  plaintiff,  which  were  to  remain  in  the  fourth 
and  fifth  stories  till  "  the  defendants  needed  those  rooms."  The 
defendants  did  not  get  possession  of  the  cellar ;  it  was  "  lumbered 
up  "  with  old  iron,  &c.,  belonging  to  the  plaintiff.  The  plaintiff 
sold  the  good-will  as  part  of  the  consideration.  Defendants  had 
the  privilege  of  renting  for  another  year  on  the  same  terms.  John 
Brisbin  testified :  The  plaintiff  occupied  part  of  the  second  story, 
with  ironware;  the  fourth  and  fifth  stories  were  occupied  entirely 
by  him.  The  defendants  frequently  between  May  and  August  told 
the  plaintiff  that  they  wanted  the  fourth  and  fifth  stories,  and  would 
not  pay  rent  unless  they  got  them ;  plaintiff  passed  off  these  requests 
in  a  careless  way  —  did  not  say  much  and  did  not  give  possession 
of  those  stories;  he  was  there  generally  every  day  from  morning 
till  evening;  he  sold  some  of  his  goods  from  the  store  during  the 
time.  The  defendants  abandoned  the  premises  about  the  last  of 
November  1866,  for  want  of  room. 

The  plaintiff  requested  the  court  to  charge  the  jury :  — 

"  1.  That  merely  leaving  wares  and  rubbish  in  portions  of  the- 
leased  building  would  not  be  an  eviction  in  law  of  the  lessees,  but 
they  would  have  the  right  to  remove  said  goods  at  the  expense  of 
the  landlord,  treating  them  as  they  might  have  done  the  property 
of  third  parties. 

''  2.  That  if  the  jury  find  from  the  evidence  that  the  defendants 
continued  in  the  enjoyment  of  the  larger  and  more  valuable  portions 
of  the  building,  after  their  alleged  demand  for  possession  of  the 
fourth  and  fifth  stories,  such  conduct  is  a  waiver  of  any  right  to 
treat  such  possession  by  the  plaintiff  as  an  eviction;  and  defendants 
will  be  liable  for  a  proper  rent  for  the  premises  actually  enjoyed 
by  them." 

The  points  were  answered  in  the  charge,  and  substantially  denied. 

The  defendants  asked  the  court  to  charge :  — 

"  1  That  the  facts  in  evidence  showed  an  eviction  in  law  before 
any  rent  had  fallen  due. 

"  2  That  having  made  a  special  contract  for  the  rent  of  the  entire 
building  for  a  year,  plaintiff  cannot  set  that  contract  aside  and  bring 
this  action  for  vxse  and  occupation,  and  recover  rent  for  that  part 
of  the  building  occupied  by  defendants." 


SECT.    Ill]  MCCLURG    V.    PRICE    &    SIMS  363 

Tlie  court  affirmed  both  those  points. 

The  court,  after  stating  the  evidence  to  tlie  jury,  cliarged :  — 
"  These  facts,  they  contend,  if  proved  to  the  satisfaction  of  the 
jury,  will  constitute  a  full  and  valid  defence  to  the  plaintiff's  action, 
for  the  following  reasons:  1.  Because  they  constitute  an  eviction 
in  law,  before  any  rent  had  fallen  due.  But  if  this  position  be  not 
sustained,  then,  2.  That  the  plaintiff  refused,  after  request,  to  deliver 
them  the  entire  possession  of  the  demised  premises,  and  as  the  plain- 
tiff cannot  take  advantage  of  his  own  wrong  in  refusing  to  comply 
with  his  contract,  by  apportioning  the  rent,  the  law  will  not  do  so 
for  him.  3.  That  having  made  a  special  contract  for  the  rent  of 
the  entire  building  for  a  year,  he  cannot  set  that  contract  aside  and 
bring  this  action  for  use  and  occupation,  and  recover  rent  for  that 
part   of  the  building  occupied  by  the  defendants. 

["  If  you  find  from  the  evidence  that  the  contract,  as  testified  to 
by  Mr.  Robertson,  was  entered  into  by  the  parties,  and  that  the  de- 
fendants entered  into  possession  under  the  same;  and  that  the  plain- 
tiff Avas  repeatedly  requested  by  them  to  give  them  the  possession  of 
the  fourth  and  fifth  stories,  before  any  rent  had  fallen  due;  that  he 
gave  them  no  definite  answer,  but  put  them  off  from  time  to  time, 
without  any  positive  refusal,  leaving  them  to  infer  that  he  would 
do  so;  and  that  they  were  finally  compelled,  for  want  of  room  to 
carry  on  their  business,  to  rent  another  house,  and  moved  out  in 
the  latter  part  of  November ;  then  we  instruct  you,  that  the  plaintiff 
is  not  entitled  to  recover  in  this  acti(Afor  use  and  occupation  for 
the  time  the  defendants  occupied  a  portion  of  the  building,  and 
your  verdict  ought  to  be  for  the  defendants.] 

"  But  if  there  was  no  such  special  contract,  but  the  defendants 
entered  merely  with  the  consent  of  the  plaintiff,  then  they  are  liable 
to  pay  a  fair  rent  for  the  use  of  such  portions  of  the  building  as  they 
occupied." 

The  verdict  was  for  the  defendants.  The  plaintiff  removed  the 
case  to  the  Supreme  Court,  and  assigned  for  error  the  disaffirmance 
of  his  points  and  the  portion  of  the  charge  in  brackets. 

The  opinion  of  the  court  was  delivered,  January  4th,  1860,  by 
Williams,  J.  The  ])litintifi"'s  retention  of  a  part  of  the  demised 
premises,  and  his  refusal  to  deliver  possession  thereof  to  the  defend- 
ants, on  demand,  in  accordance  with  the  terms  of  his  verbal  lease, 
did  not  constitute  an  eviction  in  law  It  is  doid)tless  true  that  there 
may  be  an  eviction  without  an  actual  physical  expulsion;  but  there 
can  be  no  eviction,  actual  or  constructive,  without  an  antecedent 
possession.  If  tliis  case  turned  on  tlie  question  of  eviction,  the 
plaintiff  might  be  entitled  to  recover  rent  for  the  portion  of  the 
premises  actually  enjoyed  by  the  defendants.  But  it  does  not  turn 
on  this  point.  The  evidence  shows,  and  the  jury  have  found,  tliaf  the 
plaintiff  leased  his  warehouse  to  the  def(>iu1ants,  at  an  annual  rent 
of  $1500,  payable  quarterly;   that   at   tlie   making  of  the  contract, 


364  MCCLURG    V.    PRICE   &    SIMS  [CHAP.   VI 

he  delivered  to  them  possession  of  the  tliree  lower  stories,  and  agreed 
to  give  them 'possession  of  the  cellar  and  of  the  fourth  and  fifth 
stories,  on  demand;  that  he  refused  to  deliver  possession  thereof, 
although  repeatedly  requested;  and  that  the  defendants  were  finally 
compelled,  for  want  of  room,  to  abandon  the  premises  and  to  rent 
another  house  for  the  transaction  of  their  business. 

Notwithstanding  the  plaintiff's  deliberate  and  persistent  refusal 
to  perform  his  contract,  he  claims  the  right  to  recover  compensation 
for  the  use  and  occupation  of  the  portion  of  the  demised  premises 
actually  enjoyed  by  the  defendants,  on  the  ground  that  they  had 
the  right  to  treat  his  goods  as  they  would  those  of  a  stranger,  and 
to  remove  them  at  his  expense.  But  if  the  right  be  conceded,  it 
does  not  follow  that  the  defendants  were  bound  to  exercise  it  to  the 
exclusion  of  all  other  remedies  which  the  law  gave  them  for  the 
redress  of  the  plaintiff's  breach  of  his  contract,  or  that  their  failure 
to  exercise  it  will  prevent  them  from  setting  up  any  defence  to  his 
claim  for  rent  which  they  might  otherwise  make.  But  the  defend- 
ants had  no  right  to  remove  the  plaintiff's  goods.  The  law  gave 
them  no  such  remedy  for  his  refusal  to  perform  his  contract.  The 
evidence  not  only  shows  that  his  goods  were  in  the  portion  of  the 
demised  premises  which  he  withheld  from  the  defendants,  but  that 
he  was  in  the  daily  occupancy  thereof  for  the  purpose  of  selling  his 
goods,  and  that  he  made  sales  from  time  to  time,  although  part  of 
the  consideration  of  the  stipulated  rent  was  the  good-will  of  his 
business.  If  the  defendants '^ed  ejected  the  plaintiff  and  turned  his 
goods  into  the  street,  or  removed  them  elsewhere,  they  would  have 
been  guilty  of  a  trespass  for  which  his  breach  of  the  contract  would 
have  afforded  them  no  justification.  Nor  was  their  continuance  "  in 
the  enjoyment  of  the  larger  and  more  valuable  portion  of  the  build- 
ing," after  their  demand  for  possession  of  the  residue  and  its  re- 
fusal by  the  plaintiff,  a  waiver  of  any  of  their  rights  under  the  con- 
tract, or  of  any  defence  they  might  have  to  the  plaintiff's  demand 
for  rent,  arising  from  his  breach  of  the  contract. 

The  jury  have  found  that  when  the  defendants  demanded  pos- 
session of  the  residue  of  the  demised  premises,  the  plaintiff  gave  them 
no  definite  answer,  but  put  them  off  from  time  to  time,  without  any 
positive  refusal,  leaving  them  to  infer  that  he  would  comply  vnth 
their  request.  And  if  the  jury  had  not  so  found,  the  plaintiff  was 
bound  to  perform  his  contract,  and  is  answerable  for  all  the  legal 
consequences  of  its  breach,  unless  its  performance  was  actually 
waived  by  the  defendants.  Their  continuance  in  the  possession  of 
the  three  lower  stories,  after  the  plaintiff's  refusal  to  deliver  pos- 
session of  the  residue  of  the  building,  did  not  in  itself  amount  to 
a  waiver  of  their  right  to  insist  upon  a  strict  performance  of  the 
contract.  They  had  the  undoubted  right  to  retain  possession  of  the 
three  lower  stories,  and  to  hold  the  plaintiff  responsible  for  his 
failure  to  deliver  possession  of  the  cellar   and  of   the  fourth  and 


SECT.    Ill]  THRE'r    V.    BARTON  365 

fifth  stories,  as  required  by  his  contract.  The  only  question,  then, 
under  the  facts  of  this  case,  is :  Was  the  plaintiff  entitled  to  recover 
any  portion  of  the  stipulated  rent  under  the  count  for  use  and  occu- 
pation? He  leased  his  warehouse  to  the  defendants  for  an  entire 
consideration,  and  his  contract  must  therefore  be  regarded  as  an  en- 
tirety. If  the  consideration  is  single,  the  contract  is  entire,  what- 
ever the  number  or  variety  of  the  items  embraced  in  its  subject".  The 
principle  is  too  well  settled  to  admit  of  doubt,  and  too  familiar  to 
require  the  citation  of  authorities  in  its  support,  for  that  the  part 
performance  of  an  entire  contract  there  can  be  no  recovery,  unless 
complete  performance  has  been  prevented  or  waived  by  the  party 
entitled  to  demand  it. 

If  the  plaintiff  had  performed  his  contract  he  might  have  re- 
covered on  the  count  for  use  and  occupation,  under  the  statute 
of  11  Geo.  II.  ch.  19,  which  is  in  force  in  this  state  (Rob.  Dig.  237), 
but  having  failed  to  perform  it  he  was  not  entitled  to  recover,  either 
upon  a  count  on  the  contract  of  lease,  or  upon  the  statutory  count 
for  use  and  occupation 

The  learned  President  Judge  of  the  District  Court  was  therefore 
clearly  right  in  instructing  the  jury  that,  if  they  found  the  facts 
to  be  as  stated  in  the  charge,  the  plaintiff  was  not  entitled  to  re- 
cover in  this  action  for  use  and  occupation  for  the  time  the  de- 
fendants occupied  a  portion  of  the  building,  and  their  verdict  must 
be  for  the  defendants.  Judgment  affirmed.^ 


THRE'R  V.  BARTON 
Moore  94,  pi.  232.     1570. 

A  MAN  made  a  lease  for  a  hundred  years,  and  the  lessee  made  a 
lease  for  twenty  years,  rendering  rent,  with  a  clause  of  re-entry;  and 
afterwards  the  first  lessor  granted  the  reversion  in  fee,  and  attorn- 
ment was  had  accordingly.  The  grantee  purchases  the  reversion  of 
the  term;  lie  will  have  neither  the  rent  nor  the  rc^-cntry,  for  the 
reversion  of  the  term,  to  which  it  was  incident,  is  extinct  in  the  re- 
version in  fee.  And  this  was  adjudged  at  the  Assizes  between  Lord 
Thre'r  and  Barton  who  was  lessee,  as  SfepJirns  relates.  And  Plnir- 
dcn  and  others  agreed  to  it;  but  Popham  took  this  diversity:  If  a 
man  makes  a  lease  for  life,  rendering  rent,  and  the  lessee  for  life 
makes  a  lease  for  years  rendering  rent,   and   afterwards   the  lessee 

■>  Afoorc  V.  Mnnsfidd.  182  Ma.-^.-^.  302,  accord.  And  see  Rccd  v.  Rcimoldi^, 
37  Conn.  469;  Spcvcer  v.  Burton.  .5  Blnckf.  dnd.")  .')7;  Afoorr  v.  Giinrdian 
Trmt  Co.,  173  Mo.  218;  Ethcridgc  v.  Ofihom.  12  Wend.  (N.  Y.)  .529;  Prtmy 
V.  FrUnrr,  6  Okln.  386.  Contra.  Knox  v.  Jlcrtcr.  42  X.  Y.  Super.  C\.  8.  Com- 
pare, Lawrence  v.  French,  25  Wend.  (N.  Y.)  443.  447;  Friend  v.  Oil  Well 
Supply  Co.,  179  Pa.  290;   Tunis  v.  Gandy,  22  Gratt.   (Va.)    109. 


366  BEAL    V.    BOSTON    CAR   SPRING    CO.  [CHAP.   VI 

for  life  surrenders  to  him  in  the  reversion  in  fee,  he  will  not  have 
the  rent  of  the  lessee  for  years,  nor  an  action  of  waste,  because  the 
tenant  for  life  who  surrendered  could  not  punish  the  waste  in  this 
case.  So  if  the  tenant  purchases  the  reversion  in  fee,  he  will  not 
have  an  action  of  waste  during  his  own  life.  But  otherwise  is  it  if 
a  man  makes  a  lease  for  years  rendering  rent,  and  afterwards  grants 
the  reversion  for  life,  or  for  years,  and  he  in  reversion  surrenders 
to  him,  he  will  have  the  rent  or  waste,  because  it  was  once  a  rent 
incident  to  the  reversion,  and  so  it  was  not  in  the  other.  But  Plow- 
den  and  Ipseley  said  that  all  is  one  as  to  the  action  of  waste.^ 


BEAL  V.  BOSTON  CAK  SPRING  CO. 

125  Mass.  157.    1878. 

Contract  for  rent  due  under  a  written  lease  made  by  Heyer 
Brothers  to  the  defendant  for  the  term  of  five  years  from  April  1, 
1874,  and  by  Heyer  Brothers  assigned  to  the  plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Allen,  J.,  it  appeared 
in  evidence  that  the  premises  described  in  the  lease  of  Heyer 
Brothers  to  the  defendant  constituted  a  part  of  the  same  premises 
which  Heyer  Brothers  held  under  and  by  virtue  of  a  lease  to  them 
for  a  term  of  ten  years  from  April  1,  1874,  made  by  the  plaintiff, 
who  was  the  owner  of  the  premises;  that  on  February  7,  1877,  when 
the  plaintiff  received  the  assignment  from  Heyer  Brothers  of  their 
lease  to  the  defendant,  he  executed  upon  the  back  of  the  original 
lease  from  himself  to  Heyer  Brothers  the  f ollomng  instrument : 
"Boston,  February  7,  1877.  The  within-named  lessor,  in  considera- 
tion of  the  assignment  to  him  of  certain  underleases  made  by  the 
within-named  lessees  of  parts  of  the  premises  demised  in  the  within 
lease,  and  of  one  dollar  to  him  paid  by  the  within-named  lessees, 
doth  hereby  release  and  forever  discharge  the  said  lessees,  their  heirs, 
executors,  and  administrators,  of  and  from  all  claims,  demands, 
and  causes  of  action  of  and  concerning  the  within  lease,  and 
especially  all  claims  by  him  for  rent  thereunder;  and  said  lessees 
do  hereby  surrender  and  yield  up  the  said  lease  and  the  premises 
within  described  to  said  lessor,  and  such  surrender  is  hereby 
accepted  by  him,  but  without  prejudice  to  the  leases  of  parts  of  the 
premises  assigned  to  him  as  above  mentioned."  It  further  appeared 
that  the  terms  of  this  instrument  were  carried  out,  and  that  Heyer 
Brothers  ceased  to  occupy  the  premises. 

1  See  Bailey  v.  Richardson,  66  Cal.  416;  Buftnn-  v.  Kasser,  19  Cal.  App. 
755:  Krider  v.  Rammy,  79  N.  C.  354,  358;  Webb  v.  Rtu^srll,  3  T.  R.  393; 
13  Col.  L.  Rev.  245.  Compare  Grundin  v.  Carter,  99  Mass.  15;  Pratt  v. 
Richards  Co.,  69  Pa.  53;  Hessel  v.  Johnson,  129  Pa.  173,  178-179;  7  L.  R.  A. 
N.  s.  221  note. 


SECT.    Ill]  BEAL    V.    BOSTON    CAR   SPRING    CO.  367 

The  defendant  offered  to  show  that  it  had  not  been  in  the  occu- 
pation of  the  premises  since  February  7.  This  evidence  was  objected 
to  as  being  immaterial  and  was  excluded. 

The  defendant  contended  and  asked  the  judge  to  rule  that  if,  by 
the  arrangement  entered  into  between  the  plaintiff  and  Heyer 
Brothers,  the  original  lease  was  on  February  7,  1877,  given  up,  dis- 
charged or  vacated,  and  the  tenancy  of  Heyer  Brothers  thereupon 
ceased,  and  the  plaintiff  resumed  control  of  the  premises,  and 
Heyer  Brothers  at  the  same  time  assigned  and  transferred  to  the 
plaintiff  the  underlease  before  then  held  by  the  defendant  from 
them;  and  if  the  defendant,  when  informed  of  this,  ceased  to  have 
anything  further  to  do  with  the  premises,  and  refused  to  recognize 
as  longer  subsisting  or  continuing  in  force  the  underlease  given  to 
them  by  Heyer  Brothers,  or  to  become  liable  to  the  plaintiff  as 
assignee  thereof  in  any  way,  the  plaintiff  could  not  maintain  his 
action. 

The  judge  refused  so  to  rule,  but  ruled  that  the  plaintiff  was 
entitled  to  recover;  and  directed  the  jury  to  return  a  verdict  for 
the  plaintiff.     The  defendant  alleged  exceptions. 

Endicott,  J.  The  plaintiff,  being  the  owner  of  the  estate,  leased 
the  same  for  the  term  of  ten  years  to  Heyer  Brothers;  and  they, 
on  the  same  day,  leased  a  part  of  the  premises  to  the  defendant  for 
a  term  of  five  years.  It  is  to  be  inferred  from  the  subsequent  agree- 
ment between  the  plaintiff  and  Heyer  Brothers  that  other  underleases 
were  made.  Before  the  expiration  of  the  underlease  to  the  defend- 
ant, Heyer  Brothers  assigned  it  to  the  plaintiff;  who  at  the  same 
time  indorsed  on  the  original  lease  to  Heyer  Brothers  an  agree- 
ment releasing  them  from  rent  and  accepting  the  surrender  of  their 
lease  and  the  premises,  "  but  without  prejudice  to  the  leases  of 
parts  of  the  premises  assigned  to  him."  This  agre(*nent  was  made 
in  consideration  of  the  assignment  to  the  plaintiff  of  the  under- 
leases by  Heyer  Brothers. 

The  intention  of  the  parties  is  plain.  Heyer  Brothers  having 
made  underleases  of  parts  of  the  premises  which  the  plaintiff  was 
willing  to  take,  and  desiring  also  to  surrender  the  reversion  in  these 
leases  to  the  plaintiff,  which  he  was  willing  to  accept,  the  under- 
leases were  assigned,  including  the  defendant's,  and  the  surrender  of 
the  original  lease  accepted  without  prejudice  to  the  underleases. 
They  evidently  did  not  intend  that  the  rights  of  the  plaintiff  under- 
the  assignment,  or  the  estates  of  the  sub-lessees,  should  be  destroyed 
by  the  surrender,  for  the  language  of  the  acceptance  carefully  pro- 
vides for  both.  The  purpose  was  to  put  the  plaintiff  precisely  in 
the  position  of  Heyer  Brothers.  This  intention,  as  expressed  in  the 
papers  they  have  executed,  will  be  carried  out,  if  consistent  with  the 
rules  of  law,  and  we  are  of  opinion  that  it  is. 

The  plaintiff  brings  this  action,  as  assignee  of  the  lease,  to  re- 
cover upon   the  defendant's  covenant   to  pay  rent;   and   it  is  well 


368  SEAL    V.    BOSTON    CAR   SPRING    CO.  [CHAP.   VI 

settled  tluit  when  n  lease  is  assigned  without  the  reversion,  the  privity 
of  contract  is  transferred,  and  the  assifj;n(^e  may  sue  in  his  own  name 
for  the  rent  accruing  after  the  assignnicMit.  Kendall,  v.  Carland,  5 
Cush.  74;  Hunt  v.  Thompson,,  2  Allen,  341.  The  only  objection 
suggested  to  the  plaintiff's  right  to  recover  is  the  surrender  of  the 
lease  of  Heyer  Brothers  to  the  plaintiff;  and  the  claim  is,  that  the 
rent  due  from  the  defendant  is  an  incident  of  the  reversion  in  Heyer 
Brothers,  and,  the  reversion  having  been  extinguished  by  the  sur- 
render, all  remedies  incident  to  it  are  taken  away.  But  rent  is 
not  necessarily  an  incident  to  the  reversion,  so  that  it  cannot  by  the 
acts  or  agreements  of  the  parties  be  separated  from  it.  In  a  general 
grant  of  the  reversion,  the  rent  will  pass  as  incident  to  it.  Burden 
v.  Thayer,  3  Met.  76.  But  the  reversion  may  be  granted  and  the 
rent  reserved,  or  the  rent  may  be  assigned,  reserving  the  reversion, 
if  such  is  the  intention  of  the  parties  as  expressed  in  the  vt^ords 
they  use.  Lord  Coke  says  that  fealty  is  an  incident  inseparably 
annexed  to  the  reversion,  and  the  donor  or  lessor  cannot  grant  the 
reversion  and  save  to  himself  the  fealty ;  but  the  rent  he  may  except, 
because  the  rent,  though  it  be  an  incident,  yet  is  not  inseparably 
incident.  Co.  Lit.  143  a,  151  b;  3  Cruise  Dig.  337;  Demarest  v. 
Willard,  8  Cow.  206.  Heyer  Brothers  therefore  could  have  granted 
their  reversion,  or  surrendered  it  to  the  plaintiff  and  reserved  the 
rent  accruing  upon  the  underleases.  In  such  a  case,  their  relations 
to  the  sub-lessees  vi^ould  not  be  changed  by  the  grant  or  surrender 
of  the  reversion,  and  they  could  have  recovered  rent  of  this  defend- 
ant upon  the  covenants  of  its  lease.  Having  that  estate  reserved  in 
the  premises,  they  could  have  assigned  it  to  a  third  party  or  to  the 
plaintiff,  and  the  assignment  would  have  been  good,  and  the  defend- 
ant Avould  have  been  bound  to  pay  to  the  assignee  rent  for  the  estate 
held  under  its  lease.  This  form  of  proceeding  was  not  adopted  by 
the  parties,  but  the  same  result  was  accomplished.  As  the  assign- 
ments were  simultaneous  with  the  surrender,  Heyer  Brothers  did 
not  in  terms  reserve  the  rent  to  themselves,  but  the  plaintiff  accepted 
the  surrender  in  consideration  of  the  assignment,  with  the  express 
stipulation  that  it  should  not  prejudice  the  underleases  assigned  to 
him;  that  is,  should  not  invalidate  the  assignment,  or  affect  the 
rights  of  the  parties  holding  the  leases. 

The  case  is  not  presented,  what  would  be  the  rights  of  Heyer 
Brothers  against  this,  defendant ;  or  what  would  be  the  rights  of  the 
plaintiff,  if  he  had  not  taken  an  assignment  of  the  underleases,  and 
had  accepted  a  surrender  without  qualification.  The  two  cases  of 
Grundin  v.  Carter,  99  Mass.  15,  and  Wehh  v.  Russell,  3  T.  K.  393, 
relied  on  in  support  of  the  proposition  of  the  defendant,  have  no 
application  to  the  facts  here  presented.  Exceptions  overruled} 

1  Compare  Appleton  v.  Ames,  150  Mass.  34;  Williams  v.  Michigan  Cen- 
tral R.  Co.,  133  Mich.  448;  McDonald  v.  May,  96  Mo.  App.  236;  Hessel  v. 
Johnson,  129  Pa.  173. 


SECT.    Ill]  m'mURPHY    V.    MINOT  369 

M'MURPHY  V.  MINOT 
4  N.  H.  251.    1827. 

This  was  an  action  of  covenant  broken  on  an  indenture  made  the 
12th  July,  1811,  by  which  the  plaintiff  demised  to  Seth  Daniels,  a 
certain  tract  of  land  to  hold  during  her  natural  life,  and  the  said 
Daniels  covenanted  with  the  plaintiff  to  pay  her,  on  the  first  day  of 
May,  annually,  a  rent  of  $30. 

The  action  was  brought  against  the  defendant,  as  assignee  of 
Daniels,  for  the  said  rent  from  1st  May,  1817,  to  the  1st  May,  1825, 
and  was  submitted  to  the  decision  of  the  court  upon  the  following 
statement  of  facts. 

The  indenture  was  made  as  stated  in  the  declaration,  and  Daniels 
having  entered  under  it,  afterwards  conveyed  all  his  estate  to  one 
Oilman  Dudley,  who,  on  the  3d  April,  1822,  conveyed  the  land  to 
the  defendant  in  fee  and  in  mortgage.  Dudley  remained  in  posses- 
sion and  took  the  profits  until  his  death  in  October,  1822,  and  after 
his  decease  his  administratrix  remained  in  possession,  taking  the 
profits  until  April,  1824,  On  the  16th  April,  1824,  a  tenant  entered 
upon  part  of  the  land  under  an  agreement  with  the  defendant  to 
pay  rent  to  him  in  ease  the  land  was  not  redeemed. 

On  the  23d  April,  1825,  the  administratrix  of  Oilman  Dudley 
conveyed  to  the  defendant  the  right  in  equity  to  redeem  the  land 
mortgaged  as  aforesaid,  and  the  defendant's  said  tenant  has  been  in 
possession  of  the  whole  tract  from  that  time  to  the  commencement 
of  this  action,  on  the  22d  March,  1826. 

All  the  interest  which  the  plaintiff  ever  had  in  the  land  was  an 
estate  for  her  own  life,  and  the  reversion  was  in  Daniels. 

Richardson,  C.  J.  It  has  been  urged  in  behalf  of  the  defendant  in 
this  case  that  the  plaintiff  is  not  entitled  to  recover  anything,  be- 
cause the  rent  was  never  demanded  of  Minot.  The  law  on  this  point 
is  well  settled.  When  a  lessor  proceeds  for  a  forfeiture  or  to  enforce 
a  penalty  he  must  show  a  demand  of  a  rent  on  the  very  day  it 
was  payable.  But  in  an  action  of  covenant  no  demand  is  necessary. 
18  Johns.  447,  Remson  v.  Conklin;  Com.  Dig.  Rent,  D.  4;  2  N.  H. 
Rep.  ]  63,  Coon  v.  Brickett. 

We  are  therefore  of  opinion  that  this  objection  to  the  action 
cannot  prevail. 

It  has  also  been  urged  that  this  action  cannot  be  maintained,  be- 
cause the  particular  estate  and  the  reversion  having  become  united 
in  the  same  person,  the  particular  estate  is  merged  and  the  rent 
extinguished.  Had  the  rent  in  this  case  been  incident  to  the  re- 
version, it  is  clear  that  this  action  could  not  be  maintained.  2 
IST.  H.  Rep.  454,  York  v.  Jones.  But  it  is  well  settled  that  the  rent 
is  not  inseparably  incident  to  a  reversion.  Co.  Lit.  143  and  47  a; 
2  Bl.  Com.  176. 


370  m'murphy  v.  minot  [chap,  vi 

Eent  may  be  reserved  upon  a  grant  of  a  man's  whole  estate,  in 
which  case  there  can  be  no  reversion. 

The  case  of  Webb  v.  Russell,  7  D.  &  E.  393,  which  has  been  cited 
by  the  defendant's'  counsel  does  [not]  apply  in  this  case.  It  was 
there  held  that  where  rent  is  incident  to  a  particular  reversion, 
when  that  particular  reversion  is  merged,  the  rent  is  extinguished. 
But  in  this  case  the  rent  was  never  incident  to  the  reversion.  The 
plaintiff  granted  her  whole  estate  reserving  a  rent,  and  she  had  no 
reversion  to  which  it  could  be  incident. 

In  order  to  maintain  this  ground  it  must  be  shown  that  when  he 
who  has  a  reversion  takes  a  lease  of  the  particular  estate  and  cove- 
nants to  pay  rent,  such  rent  is  extinguished  by  the  union  of  the 
particular  estate  and  the  reversion.  But  this  proposition  cannot 
be  sustained  by  any  reason  or  authority,  and  we  are  of  opinion 
that  this  ground  of  defence  fails  altogether. 

But  it  is  further  contended  on  the  part  of  the  defendant  that 
being  only  a  mortgagee  he  cannot  in  any  event  be  held  liable  for  the 
rent  until  he  took  possession  under  the  mortgage,  and  the  case  of 
Eaton  V.  Jaques,  Doug.  438,  is  cited  as  an  authority.  But  that 
decision  has  been  long  questioned,  7  D.  &  E.  312,  and  in  1819  the 
question  came  before  all  the  judges  of  England,  and  a  great  majority 
were  of  opinion  that  when  a  party  takes  an  assignment  of  a  lease 
by  way  of  mortgage  as  a  security  for  money  lent,  the  whole  interest 
passes  to  him  and  he  becomes  liable  on  the  covenant  for  the  payment 
of  rent,  though  he  has  never  occupied  or  become  possessed  in  fact. 
1  Brod.  &  Bing.  72,  Williams  v.  Bosanquet  et  a. 

In  this  State  it  has  been  repeatedly  decided  that  a  mortgage  in 
fee  vests  in  the  mortgagee  the  whole  legal  estate ;  the  necessary  conse- 
quence of  which  seems  to  be  that  such  a  mortgagee  miist  be  liable 
for  the  performance  of  covenants  running  wath  the  land.  And 
we  think  in  this  case  the  defendant  is  liable  for  any  rent  that  be- 
came due  after  his  mortgage  was  executed. 

In  considering  this  case,  the  question  occurred  to  us  whether  the 
liability  of  the  defendant  could  be  affected  by  the  circumstance 
that  the  rent  was  reserved  upon  a  grant  of  the  freehold,  while  the 
conveyance  to  him  was  in  fee.  But  we  find  that  it  has  been  decided 
that  covenant  will  lie  against  the  assignee  of  part  of  an  estate  for 
not  repairing  his  part,  for  it  is  devisable  [divisible],  and  follows 
the  land.    Cro.  Car.  222,  Congham  v.  King;  2  East,  580. 

And  we  are  not  able  to  discover  any  reason  why  he  who  takes  a 
larger  estate  should  not  be  bound  by  a  covenant  running  with  a 
less  estate  which  is  parcel  of  the  larger. 

On  behalf  of  the  plaintiff  it  has  been  argued  that  the  defendant 
is  liable  in  this  action,  not  only  for  the  rent  which  has  become  due 
since  he  became  owner  of  the  land,  but  the  rent  which  became  due 
before  that  time. 

The  cases  which  have  been  cited  by  the  defendant's  counsel  seem 
to  show  that  the  law  is  not  so. 


SECT.   Ill]  HUGHES    V.   ROBOTHAM  371 

It  is  another  argument  in  favor  of  tlie  defendant,  that  when  the 
action  is  against  an  assignee,  it  is  usual  to  allege  in  assigning  the 
breach  of  the  covenant,  that  the  breach  happened  after  the  assign- 
ment. 2  Chitty's  PI.  191;  Lilly,  134;  6  Johns.  105,  Dubois  v.  Van 
Ordenj  Carthew,  177;  2  Ventris,  231. 

It  is  said  in  Woodfall,  274  and  338,  that  an  assignee  is  liable  for 
arrearages  of  rent  incurred  before,  as  well  as  during  his  enjoyment; 
but  he  cites  no  case  in  which  it  has  been  so  decided,  and  offers  no 
argument  in  support  of  the  propositions,  and  we  are  of  opinion 
that  this  is  not  law,  and  there  must  be  judgment  for  the  plaintiff 
for  the  rent  which  has  become  due  since  the  3d  of  April,  1822, 

Judgment  for  the  plaintiff. 


HUGHES  V.   ROBOTHAM,  EXECUTOR 

Cro.  Eliz.     302.     1593. 

Assumpsit.  That  whereas  the  14th  April,  &c.  the  plaintiff  was 
possessed  of  a  lease  for  years,  and  the  testator  was  possessed  of  the 
'reversion  for  years,  the  testator,  in  consideration  the  plaintiff  would 
surrender  to  him  all  his  estate,  promised  to  give  him  thirty  pounds; 
and  alledges  in  facto,  that  20th  April,  &c.  he  surrenders,  kc.  Upon 
non  assumpsit  it  was  found  for  the  plaintiff. 

Foster  moved  in  arrest  of  judgment,  Eirst,  It  was  not  alledged 
that  he  was  possessed  of  the  entire  term  at  the  time  of  the  surrender; 
and  it  may  be  he  had  assigned  part  of  it  before  to  another. 

Secondly,  Both  parties  are  termors;  one  in  possession,  and  the 
other  in  reversion :  and  a  termor  cannot  surrender  to  a  termor,  for 
one  estate  cannot  drown  in  the  other. 

As  to  the  first,  all  the  CorRx  held  clearly  that  the  declaration  is 
good;  for  it  shall  not  be  otherwise  intended,  but  that  the  estate 
did  continue;  and  it  being  but  an  inducement,  it  need  not  be  so  pre- 
cisely alledged. 

To  the  second,  Popham  said,  it  is  clear  that  he  who  hath  an 
estate  for  ten  years,  may  surrender  to  him  that  hath  an  estate  for 
twelve  years;  and  the  estate  is  drowned,  and  the  other  shall  come  in 
possession;  and  there  is  no  doubt  but  a  surrender  to  him  that  hath 
a  greater  estate  for  years  is  good,  as  to  him  that  hath  an  estate  for 
life,  which  Gawdy  did  expressly  affirm;  and  here  it  standeth  in- 
different, if  the  reversioner  had  a  greater  estate  for  years  or  not: 
but  if  one  be  lessee  for  twenty  years,  and  he  let  the  land  for  ten 
y(>ars,  and  he  surrenders  to  him  that  hath  the  residue  of  the  term, 
this  is  good  to  convey  his  interest,  but  not  to  drown  the  estate,  but 
he  shall  have  the  twenty  years  as  before:  otherwise  it  is  of  a 
surrender  to  another  man  that  hath   the  reversion  for  years. 

And  PoPHAM  conceived,  that  if  the  testator  had  the  reversion  for 


372  WHITLEY    V.   GOUGH  LCHAP.    VI 

a  less  number  of  years,  yet  the  surrender  is  good,  and  the  estate 
shall  drowu  in  it.  And  if  a  man  be  lessee  for  twenty  years,  and  the 
reversion  is  granted  for  one  year  to  another,  who  grants  it  to  the 
lessee  for  twenty  years,  this  is  a  surrender  of  the  first  lease  for  twenty 
years,  and  is  as  if  he  had  taken  a  new  lease  for  a  year  of  his  lessor. 
Quod  Fenner,  Justice,  affirmed;  and  said  the  surrender  was  good, 
although  the  reversion  was  for  a  less  term  for  years;  for  here  are 
several  terms  out  of  the  reversion,  and  one  cannot  stand  with  the 
other;  but  coming  together,  one  shall  drown  the  other:  and  the 
number  of  years  is  not  material;  for  as  he  may  surrender  to  him 
who  hath  the  reversion  in  fee,  so  he  may  to  him  that  hath  the  re- 
version for  a  lesser  term :  but  when  lessee  for  twenty  years,  maketh  a 
lease  for  ten  years,  who  surrenders;  this  cannot  drown  in  the  other, 
because  it  was  not  to  commence  until  the  term  expired.  —  And  it 
was  adjudged  accordingly  for  the  plaintiff.^ 


SECTION    IV 

TERMINATION    OF    THE    RELATION 

WHITLEY  V.  GOUGH 
Dyer  140  b.     1557. 

In  trespass  between  Whitley,  widow,  and  Gough,  there  was  a  de- 
murrer in  law  upon  the  evidence,  where  the  husband  of  the  plaintiff 
made  a  lease  by  indenture  to  the  defendant  for  a  term  of  ninety 
years,  and  afterwards  enfeoffed  certain  persons,  and  took  back  an 
estate  to  himself  and  his  said  wife  in  tail ;  and  afterwards  the  termor 
took  a  new  lease  of  the  husband  for  eighteen  years  only,  to  commence 
immediately,  by  parol;  and  afterwards  the  husband  died,  and  his 
wife  ousted  the  termor.  x\nd  by  the  opinion  of  the  judges  she  may 
well  do  this,  for  the  first  lease  was  surrendered  and  merged  in  law 
by  the  acceptance  of  the  second,  Szc.    See  E.  3  Eliz.  fol.  200,  pi.  62." 

1  See  Pory  v.  Allen,  1  Leon.  303;  Willcs  v.  Whitcwood,  1  Leon.  322; 
Dighton  v.  Greenvil,  2  Vent.  321;  Stephens  v.  Bridges,  6  Mad.  66;  3  Preston, 
Convevancing,  177-219. 

^  Otis  V.  McMillan,  70  Ala.  46;  Edwards  v.  Hale,  37  W.  Va.  193.  Com- 
pare Evans  v.  McKanna,  89  Iowa  362;  Oldewurtel  v.  Wiesenfeld,  97  Md. 
165;  Bowman  v.  Wright,  65  Neb.  661;   Donellan  v.  Read,  3  B.  &  Ad.  899. 

If  a  lease  is  void,  its  acceptance  is  not  a  syrrender  of  a  former  lease. 
Watt  V.  Maydewell,  Hutt.  104;  Davison  v.  Stanley,  4  Burr.  2210;  Doe  d. 
Egremont  v.  Courtenay,  11  Q.  B  702;  Doe  d.  Biddulph  v.  Poole,  11  Q.  B. 
713;  Zick  v.  Tramways,  [1908]  2  K.  B.  126.  If  Melloios  v.  May,  2  Cro.  Eliz. 
874,  is  correctly  reported,  it  mu.st  be  considered  as  oveiTuled.  Compare 
Chamberlain  v.  Dunlop,  126  N.  Y.  45. 

"All  the  old  cases  will  be  found  to  depend  on  the  principle  to  which  we 
have  adverted,  namely,  an  act  done  by  or  to  the  owner  of  a  particular 
estate,  the  validity  of  which  he  is  estopped  from  disputing,  and  which  could 


SECT.    IV]  HAMERTON    V.    STEAD  373 

HAMERTON  v.  STEAD 
3  B.  &  C.  478.     1824. 

Trespass  for  breaking  and  entering  a  mill,  dwelling-house,  and 
close  of  plaintiff,  ejecting  him  therefrom,  and  keeping  him  out  of 
possession  for  a  long  space  of  time.  Plea,  Uberum  ienementuin. 
Replication,  that  before  the  said  time  when,  &c.,  to  wit,  on,  &c., 
defendant  demised  the  premises  to  plaintiff,  as  tenant  from  year  to 
year,  by  virtue  of  which  demise  plaintiff  entered,  and  was  possessed 
of  the  premises,  and  continued  so  possessed  until  and  at  the  said 
time  when,  &c.  Rejoinder,  that  after  the  making  of  the  said 
demise  in  the  replication  mentioned,  and  before  the  said  time 
when,  (Src,  the  said  tenancy,  and  the  estate  and  interest  of  the 
plaintiff  in  the  demised  premises,  in  which,  &c.,  wholly  ended  and 
determined.  Surrejoinder,  that  the  tenancy,  (Src,  did  not  end  and 
determine  in  manner  and  form  alleged  in  the  rejoinder.  At  the 
trial,  before  Garrow,  B.,  at  the  last  S])ring  Assizes  for  Salop,  it 
appeared  that  on  the  1st  of  May  1810,  the  premises  in  question  were 
demised  by  the  defendant  to  the  plaintiff,  as  tenant  from  year  to 
year,  and  he  continued  so  to  hold  them  until  the  25th  of  September 
1815,  when  notice  was  given  to  him  to  quit  on  the  1st  of  May  then 
next.  On  the  10th  of  October  1815,  by  an  agreement  in  writing, 
made  between  the  defendant  of  the  one  part,  and  the  plaintiff  and 
one  Moore  of  the  other  part,  defendant  agreed  to  let  and  demise 
unto  plaintiff  and  Moore  the  premises  in  question,  to  hold  them  unto 
plaintiff  and  Moore  from  the  1st  of  November  then  next,  for  seven 
years  thence  next  ensuing,  at  a  yearly  rent  of  £159,  payable  half 
yearly  on  the  1st  of  May  and  1st  of  November.  Plaintiff  and  Moore 
thereby  agreed  to  pay  the  rent  and  all  taxes,  except  the  landlord's 
property  tax;  and  defendant  agreed  to  put  all  the  premises  in  ten- 
antable  repair  as  soon  as  conveniency  would  permit.  And  the  plain- 
not  have  been  done  if  the  particular  estate  continued  to  exist.  The  law 
there  says  that  the  act  itself  amounts  to  a  surrender.  In  such  case  it  will 
be  observed  there  can  be  no  question  of  intention.  The  surrender  is  not 
the  re.sult  of  intention.  It  takes  place  independently,  and  even  in  spite  of 
intention."  Per  Parkej,  R.,  in  Lyon  v.  Reed,  13  M.  &  W.  285,  306.  See 
Brown  v.  Cairns,  107  Iowa  727,  737;  Brotvn  v.  Linn  Woolen  Co.,  114  Me. 
266;  Flagq  v.  Dow,  99  Mass.  18,  21;  Thomas  v.  Zumbalen,  43  Mo.  471.  477; 
Enyrart  v.  Davii^,  17  Neb.  228,  236:  O'Neil  v.  Peari<e,  87  N.  J.  L.  382,  384; 
Van  Renji.'^elaer  v.  Penniman,  6  Wend.  (N.  Y.)  569,  578;  Smith  v.  Kerr, 
108  N.  Y.  31. 

The  cancellation  of  a  lease  is  ineffective  as  a  surrender.  Rowan  v. 
Lytle,  11  Wend.  (N.  Y.)  616;  Roe  d.  Berkeleij  v.  Archbishop  of  York,  6  Ea.st 
86.  Compare  Brewer  v.  National  BUIq.  /!,«'/?.,  166  111.  221 ;  Walker  v.  Richard- 
son, 2  M.  &  W.  882;   Mayennis  v.  Mac-Cidlouyh,  Gilf.  Cas.  in  Eq.  235. 

As  to  oral  surrender  of  .short  term  leases,  sop  Loqan  v.  Barr,  4  Har.  (Del.) 
546:  /?o,s.s^  V.  Schneider.  30  Ind.  423;  Smith  v.  Devlin,  23  N.  Y.  363;  M  Kinney 
V.  Reader.  7   Watts    (Pa.)    123;   4   A.   L.  R.  671   note. 


374  HAMERTON    V.    STEAD  [CHAP.   VI 

tiff  and  Moore  further  agreed  to  keep  the  premises  in  repair,  and 
leave  them  so  at  the  end  of  the  term;  and  lastly,  it  was  further 
agreed  that  a  lease  should  be  forthwith  drawn,  in  which  the  usual 
covenants  were  to  be  inserted,  and  particularly  that  the  lessees 
should  not  let,  set,  or  assign  the  premises,  or  any  part  thereof,  with- 
out the  lessor's  consent  in  writing.  The  lessees  took  possession 
under  this  agreement,  and  Moore  continued  to  occupy  the  premises 
jointly  with  Hamerton  until  April  1816,  and  then  quitted.  In  June 
the  same  year,  defendant  not  being  able  to  get  any  rent,  a  negotia- 
tion was  entered  into  respecting  the  surrender  of  the  premises,  but 
that  proved  fruitless;  and  defendant  having  obtained  the  keys,  took 
and  retained  possession  of  the  mill  and  other  premises.  For  the 
defendant,  it  was  objected  that  the  new  agreement  in  October  1816 
was  a  lease,  and  put  an  end  to  the  original  tenancy  of  the  plaintiff; 
or,  at  all  events,  if  it  was  only  an  agreement  for  a  lease,  yet  that  the 
agreement,  together  with  the  fact  of  Moore's  having  been  let  into 
possession  by  virtue  of  it,  as  a  joint  occupier  with  the  plaintiff, 
worked  a  surrender  in  law  of  the  old  tenancy.  The  learned  judge 
reserved  the  point,  and  a  verdict  having  been  found  for  the  plaintiff, 
a  rule  7iisi  to  enter  a  nonsuit  was  obtained  in  Easter  Term. 

Abbott,  C.  J.  In  Roe  v.  The  Archbishop  of  Yorh  [6  East,  86] 
the  occupation  by  virtue  of  the  new  lease  took  place  under  a  mistaken 
idea,  that  it  was  a  good  and  valid  lease;  and  when  that  was  dis- 
covered to  be  void,  the  court  very  properly  held  that  it  should  not 
operate  as  a  surrender  of  the  former  lease.  Here,  there  is  nothing  to 
show  that  the  defendant  refused  to  grant  such  a  lease  as  was  con- 
tracted for;  and  we  find,  in  fact,  that  a  new  contract  was  made  to 
let  the  premises  to  two  persons  instead  of  one,  and  that  both  entered 
and  occupied.  The  lessor  might  then  have  sued  both  for  the  rent, 
although  no  distress  could  have  been  made.  It  frequently  happens, 
that  persons  enter  and  occupy  at  a  rent  to  be  fixed  in  future.  In. 
such  cases  no  distress  can  be  made,  but  an  action  may  be  brought 
for  the  rent  on  a  quantum  valehat.  It  seems  to  me,  therefore,  that 
in  the  present  case  the  old  tenancy  was  determined,  and  a  new  joint 
tenancy  by  the  plaintiff  and  Moore  created  by  that  which  was  done 
under  the  agreement  with  the  plaintiff's  concurrence. 

Bayley,  J.  It  is  clear,  since  the  passing  of  the  Statute  of  Frauds, 
that  a  subsisting  term  cannot  be  surrendered  unless  by  writing  or 
by  operation  of  law.  But  if  a  sole  tenant  agrees  to  occupy,  and  does 
occupy  jointly  with  another,  that  puts  an  end  to  the  former  sole 
tenancy.  The  case  of  Roe  v.  The  Archbishop  of  Yorl'  does  not  apply 
to  this  case,  for  here  the  agreement  connected  with  the  joint  occu- 
pation by  Moore  and  the  plaintiff,  made  them  both  tenants  and  there- 
fore operated  as  a  surrender  of  the  separate  tenancy  of  the  latter. 

HoLROYD,  J.  I  think  that  an  agreement  for  a  fresh  lease  would 
not  put  an  end  to  a  former  tenancy,  unless  a  new  tenancy  were 
actually  created.    By  taking  the  document  in  question  not  to  amount 


SECT.    IV ]  DOE   d.    MURRELL   V.    MILWARD  375 

to  a  lease,  yet  the  entry  and  holding  by  Moore  and  the  plaintiff 
together  under  it,  created  a  new  tenancy  either  from  year  to  year 
or  at  will;  and  that,  according  to  Mellow  v.  May,  Moore,  636,  would 
terminate  the  old  holding.  Perhaps,  until  a  lease  was  executed,  it 
might  not  be  considered  that  the  two  held  at  the  rent  mentioned  in 
the  agreement,  but  still  it  might  be  a  holding  under  the  agreement. 
For,  as  was  said  by  my  Lord  Chief  Justice,  there  might  be  an  occu- 
pation on  a  quantum  ralehal  until  the  execution  of  the  lease,  and 
although  no  distress  for  rent  could  be  made,  yet  still  a  tenancy 
would  exist.  For  these  reasons  it  appears  to  me,  that  the  sole  tenancy 
of  the  plaintiff  had  terminated,  and  that  a  nonsuit  must  be  entered. 
LiTTLEDALE,  J.  I  am  of  opiniou  that  the  former  tenancy  of  the 
plaintiff  was  put  an  end  to  by  the  agreement  for  a  new  lease,  and 
the  occupation  by  Moore  and  the  plaintiff  jointly  in  pursuance  of 
that  agreement.  It  is  unnecessary  to  say,  whether  the  instrument 
in  question  is  or  is  not  a  lease,  for  where  parties  enter  under  a 
mere  agreement  for  a  future  lease  they  are  tenants  at  will;  and  if, 
rent  is  paid  under  the  agreement,  they  become  tenants  from  year  to 
year,  determinable  on  the  execution  of  the  lease  contracted  for, 
that  being  the  primary  contract.  But  if  no  rent  is  paid,  still  before 
the  execution  of  a  lease  the  relation  of  landlord  and  tenant  exists, 
the  parties  having  entered  with  a  view  to  a  lease  and  not  a  pur- 
chase. I  therefore  concur  in  thinking  that  a  nonsuit  must  be 
entered.  Bule  absolute. 


DOE  d.  MURRELL  v.  MILWARD  AND  A:N^0THER 
3  M.  &  W.  328.    1838. 

Ejectment  to  recover  possession  of  a  house  and  premises  at  Hor- 
sham, in  Sussex.  The  demise  was  laid  on  the  27th  June,  1837. 
At  the  trial  before  Lifflrdale,  J.,  at  the  last  Summer  Assizes  for  the 
above  county,  it  appeared  that  the  defendants  were  yearly  tenants 
to  the  lessor  of  the  plaintiff  of  the  house  and  premises  in  question; 
and  being  desirous  of  leaving  and  going  to  occupy  some  premises  of 
their  OAvn,  in  order  to  determine  the  tenancy,  they  gave  the  lessor 
of  the  plaintiff  a  notice  to  quit,  which  was  in  the  following  words:  — 

Horsham,  23d  December,  1836, 

We  hereby  give  you  notice  that  we  intend  to  give  and  deliver  up 
the  possession  of  the  messuage  or  tenement  we  now  hold  of  you  at 
Midsummer  day  next, 

WlLLIAAf     Mil  WARD, 

Robert  Milward. 
To  Henry  Murrell,  Horsham. 


376  DOE   d.    MURRELL    V.    MILWARD  [CHAP.    VI 

The  lessor  of  the  plaintiff  accepted  the  notice  without  making  any 
obiection  to  it,  but  he  gave  no  assent  to  it  in  writing.  The  tenant 
of'  the  defendants  having  refused  to  quit  the  premises  which  they 
intended  to  remove  to,  they  felt  desirous  of  continuing  in  the  occu- 
pation of  the  plaintiff's  house;  and  having  discovered  that  their 
tenancy  commenced  at  Christmas  instead  of  Midsummer,  they,  pre- 
viously to  Midsummer,  gave  a  fresh  notice  to  quit  at  the  Christmas 
following.  A  demand  of  possession  having  been  made  on  the  ex- 
piration of  the  first  notice,  the  defendants  refused  to  deliver  up  pos- 
session, on  the  ground  that  their  tenancy  expired  at  Christmas 
and  not  at  Midsummer;  and  this  ejectment  was  accordingly  brought. 
It  was  contended  at  the  trial,  on  the  part  of  the  lessor  of  the  plain- 
tiff, that  although  the  notice  might  be  insufficient  as  a  notice  to  quit, 
in  case  the  tenancy  expired  at  Christmas,  yet  it  would  operate  as  a 
surrender  by  operation  of  law  of  the  defendants'  interest,  it  being  a 
note  in  writing  within  the  meaning  of  the  3d  section  of  the  Statute 
of  Frauds.  The  learned  judge  left  it  to  the  jury  to  say  whether,  on 
the  evidence,  the  tenancy  commenced  at  Midsummer  or  at  Christmas, 
and  the  jury  found  the  latter.  The  learned  judge,  however,  directed 
a  verdict  for  the  lessor  of  the  plaintiff  on  the  point  as  to  the  sur- 
render, but  gave  the  defendants  leave  to  move  to  enter  a  nonsuit. 
Tyndale  having  in  Michaelmas  Term  last  obtained  a  rule  accordingly, 
on  the  authority  of  Joluutone  v.  Huddle  stone,  4  B.  &  C.  922. 

Paeke,  B.  I  am  very  strongly  of  opinion  that  there  cannot  be 
a  surrender  to  take  place  in  futuro.  In  Johnstone  v.  Huddlestone, 
it  was  held  that  an  insufficient  notice  to  quit,  accepted  by  the  land- 
lord, did  not  amount  to  a  surrender  by  operation  of  law,  and  it  was 
there  agreed  that  there  could  not  be  a  surrender  to  operate  in  future. 
The  case  of  Aldenhurgh  v,  Peaple  [6  C.  &  P.  212]  was  much  shaken 
by  the  decision  of  this  court  in  Weddall  v.  Capes  [1  M.  &  W.  50]  ; 
for,  although  this  precise  point  is  not  there  determined,  yet  it  is 
clear  that  the  court  were  of  opinion  that  the  instrument  could  not 
operate  as  a  surrender  in  futuro.  As  to  granting  a  new  trial,  there 
appears  to  have  been  conflicting  evidence  as  to  the  time  at  which 
the  tenancy  commenced ;  but  that  the  jury  have  determined  in  favor 
of  the  defendant. 

Alderson,  B.  There  was  evidence  to  show  that  this  was  a  tenancy 
commencing  at  Christmas,  and  the  jury  have  so  found.  We  cannot 
therefore  grant  a  new  trial.  The  lessor  of  the  plaintiff  can  bring  a 
fresh  ejectment,  if  he  pleases. 

The  other  barons  concurred. 

Rule  absolute  to  enter  a  nonsuit. 


SECT.    IVj  FENNER    V.    BLAKE  377 

TENNER  V.  BLAKE 
[19001  1  Q.  B.  426.     1900. 

Appeal  from  tlic  county  court  of  Norfolk. 

In  Mai'clx,  1895,  the  defendant  became  tenant  to  the  plaintiff  of 
certain  premises  upon  an  agreement  for  a  three  years'  tenancy  ex- 
piring at  Lady  Day,  1898.  Upon  the  expiry  of  that  term  the  de- 
fendant continued  in  possession  of  the  premises  as  tenant  from  year 
to  year.  In  December,  1898,  he  asked  the  plaintiff  to  release  him 
from  his  tenancy,  and  it  was  then  orally  agreed  between  them  that 
the  defendant's  tenancy  should  terminate  at  Midsummer,  1899, 
unless  in  the  meantime  another  tenant  were  found.  With  the  de- 
fendant's assent,  a  notice  board  was  put  up  upon  the  premises 
stating  that  they  were  to  let.  In  February  the  plaintiff  found  a 
purchaser,  and,  relying  upon  the  defendant's  agreement  to  surrender 
the  premises  on  June  24,  he  entered  into  a  contract  with  the  pur- 
chaser to  sell  him  the  premises  and  to  deliver  possession  on  that 
date.  On  June  24  the  defendant  refused  to  give  up  possession. 
The  plaintiff  brought  ejectment.  At  the  hearing  it  was  contended 
for  the  defendant  that  the  agreement  to  surrender  the  premises  in 
June,  not  being  in  writing,  was  void,  and  that  his  tenancy  was  con- 
sequently still  subsisting.  The  county  court  judge  gave  judgment 
for  the  plaintiff. 

The  defendant  appealed. 

Channell,  J.  In  this  case  I  am  of  opinion  that  the  judgment 
of  the  county  court  judge  must  be  affirmed.  There  appear  to  me 
to  be  two  grounds  upon  which  the  plaintiff  is  entitled  to  succeed. 

The  defendant  was  a  tenant  who  had  an  ordinary  tenancy  from 
year  to  year  terminable  by  notice  in  March.  In  December,  1898, 
the  defendant,  being  desirous  of  getting  rid  of  his  tenancy  and  not 
having  given  notice  to  quit  in  the  following  March,  had  a  meeting 
with  his  landlord,  the  plaintiff,  when  they  mutually  agreed  by  parol 
that  the  tenancy  should  be  determined  in  the  following  June.  The 
question  is,  What  is  the  effect  of  that  agreement?  It  is  by  no  means 
uncommon  for  n  landlord  and  tenant  to  agree  by  parol  to  a  varia- 
tion of  tlio  terms  of  an  existing  tenancy,  such  as  an  alteration  in  the 
amount  of  tlio  rent,  and  at  all  events  in  cases  where  tlie  tenancy 
was  such  that  the  contract  creating  it  was  not  required  by  law  to 
be  in  writing,  as  in  the  case  of  a  tenancy  from  year  to  year,  a  parol 
variation  of  the  terms  as  to  the  rent  would  be  perfectly  good  and 
sufficient  in  point  of  law.  And  if  an  agreement  as  to  an  alteration 
of  the  rent  may  be  made  by  parol,  Avhy  may  not  equally  an  agree- 
ment as  to  an  alteration  of  the  date  at  which  the  tenancy  is  to  be 
determinable?  It  seems  to  ni(>  (liat  the  effect  of  the  agr(>enieiit  in 
December  was  that  tlie  defenthint   accepted   a   new   tenancy  for  six 


378  FENNER    V.    BLAKE  [CHAP.   VI 

months  terminable  in  June  in  lieu  of  the  existing  tenancy.  And  if 
so,  then  all  the  authorities  agree  that  the  acceptance  of  a  new  ten- 
ancy works  a  surrender  of  the  old  tenancy  by  operation  of  law.  On 
that  ground  I  am  of  opinion  that  the  plaintiff  was  entitled  to  main- 
tain his  action. 

But  there  is  also  another  ground  which  I  think  is  equally  applic- 
able, and  which  I  think  is  not  displaced  by  Lyon  v.  Reed,  13  M,  & 
W.  285,  one  of  the  cases  on  which  Mr.  Chitty  relied.  It  seems  to 
me  that  in  this  case  the  facts  raise  an  ordinary  case  of  estoppel. 
The  defendant,  having  agreed  to  give  up  possession  of  the  premises 
in  June,  assented  to  the  landlord  selling  the  premises  with  a  right 
of  the  purchaser  to  possession  in  June.  The  landlord  accordingly 
sold  to  a  purchaser  with  a  right  to  possession  at  that  date,  and 
thereby  rendered  himself  liable  to  an  action  at  the  suit  of  the  pur- 
chaser if  he  was  unable  to  give  him  possession  at  that  date.  Under 
those  circumstances  it  seems  clear  that  the  tenant  is  estopped  from 
saying  that  his  tenancy,  whatever  it  was  in  fact,  was  not  a  tenancy 
ending  in  June.  It  is  an  invariable  practice,  when  a  reversion  is  put 
up  to  auction,  for  the  vendor  to  state  what  the  terms  of  the  tenancy 
are  and  when  it  expires;  and  if  the  tenant  is  communicated  with 
before  the  sale  and  agrees  that  his  tenancy  is  of  such  and  such  a 
character,  and  thereupon  it  is  so  described,  and  the  sale  takes  place 
upon  that  footing,  it  is  impossible  to  say  that  the  tenant  is  not 
estopped  from  saying  that  the  tenancy  is  other  than  that  upon  the 
footing  of  which  he  allowed  the  property  to  be  sold  to  the  pur- 
chaser. On  this  ground  of  estoppel  also  I  think  that  the  judgment 
of  the  county  court  judge  may  be  supported. 

BucKNiLL,  J.  I  am  of  the  same  opinion.  The  effect  of  the  evi- 
dence stated  in  the  judge's  notes  seems  to  be  this  —  that  the  de- 
fendant asked  to  be  released  from  his  tenancy,  and  the  landlord 
consented,  and  they  then  and  there  agreed  that  there  should  be  a 
new  tenancy  for  six  months  terminating  in  June.  If  that  is  the 
effect  of  it,  then  the  acceptance  of  the  new  tenancy  amounted  to  a 
surrender  by  operation  of  law.  I  also  entirely  agree  with  what  my 
brother  Channell  has  said  upon  the  point  as  to  estoppel.  Upon  both 
those  grounds  I  think  the  judgment  of  the  county  court  judge  was 
right.     The  appeal  must,  therefore,  be  dismissed. 

Appeal  dismissed. 
Leave  to  appeal  refused.^ 

1  See  Warren  v.  Lyons,  152  Mass.  310;  Mundy  v.  Warner,  61  N.  J.  L. 
395;  Allen  v.  Jaqiiish,  21  Wend.  (N.  Y.)  628. 


SECT.    IV]  NICKELLS    V.    ATHERSTONE  379 

NICKELLS  V.  ATHERSTONE 

10  Q.  B.  944.     1847. 

Debt  on  a  demise  of  rooms  &c.,  by  plaintiff  to  defendant  for 
three  years  from  March  1st,  1844,  at  the  yearly  rent  of  £100,  payable 
quarterly  in  advance;  averment,  that  defendant  entered,  and  was 
possessed  until  1st  September,  1845. 

Pleas.  1.  Traversing  the  demise.  2.  Eviction  by  plaintiff.  3. 
Surrender.     Traverses  of  pleas  two  and  three. 

On  the  trial,  before  WigJittnan,  J.,  at  the  London  sittings  after 
Easter  Term,  1846,  the  following  appeared  to  be  the  material  facts. 
The  rooms  were  let  by  plaintiff  to  defendant  under  a  memorandum 
of  agreement  dated  26th  February,  1844,  on  the  terms  specified  in 
the  declaration.  The  defendant  entered,  and  paid  rent  for  the  first 
two  quarters,  beginning  respectively  March  1st  and  June  1st,  1844. 
In  August,  1844,  the  defendant  removed  his  property  from  the 
rooms  and  left  them,  and  applied  to  the  plaintiff  to  take  them  off 
his  hands.  The  plaintiff  refused.  The  defendant  then  asked  the 
plaintiff  to  let  the  rooms  for  him;  and  the  plaintiff  said  he  would 
try  to  do  so.  On  3d  September,  1844,  the  defendant  being  then 
absent,  the  plaintiff  applied  to  his  daughter  for  the  rent  due  on  1st 
September.  In  reply,  the  following  letter  was  written  by  the  defend- 
ant to  the  plaintiff. 

Edinbt^rgh,  11th  September,  1844. 

Sir,  —  I  heard  from  my  daughter  that  you  expressed  your  inten- 
tion to  take  legal  measures  against  me  unless  the  ensuing  quarter 
rent  were  paid  on  the  very  day  commencing  the  quarter.  I  consider 
such  a  step  would  be  harsh;  and  under  present  circumstances 
it  would  be  utterly  useless.  It  will  probably  be  six  months  before 
I  can  finally  leave  Scotland,  as  the  greater  part  of  my  business  con- 
nexion lies  in  this  country.  I  trust,  however,  that  you  may  be 
able  to  let  the  rooms  to  some  other  person,  and  on  better  terms. 

E.  Atheestone. 

On  29th  September,  1844,  the  plaintiff,  without  any  further  com- 
munication with  the  defendant,  let  the  room  in  question,  together 
with  some  others,  to  a  Mr.  Bullock,  for  three  years  from  that  date, 
at  £120  a  year,  payable  quarterly  in  advance.  Mr.  Bullock  paid  the 
first  two  quarters,  but  subsequently  became  insolvent.  The  present 
action  was  then  brought,  claiming  from  the  defendant  the  four 
quarters'  rent  from  September  1st,  1844,  to  September  1st,  1845, 
under  the  agreement  of  February,  1844;  but  credit  was  given  to  the 
defendant  for  the  first  two  quarters'  rent,  which  the  plaintiff  had 
received  from  Bullock. 


380  NICKELLS    V.    ATHERSTONE  [CHAP.   VI 

Wightman  J.,  left  it  to  the  jury  to  say  whether  the  plaintiff 
agreed  to  the  terms  offered  by  the  defendant  in  his  letter  of  11th 
September,  and  accepted  Bullock  as  his  tenant  in  substitution  and 
discharge  of  the  defendant.  The  jury  found  that  the  plaintiff  did 
accept  Bullock  as  his  tenant  in  discharge  of  the  defendant.  Verdict 
for  the  plaintiff,  under  the  direction  of  the  learned  judge,  on  the 
first  issue,  for  the  defendant  on  the  other  issues,  with  leave  to  the 
plaintiff  to  move  to  enter  a  verdict  for  himself  for  £50,  on  either 
or  both  the  other  issues. 

A  rule  nisi  having  been  accordingly  obtained,^ 

Lord  Denman,  C.  J.,  now  delivered  judgment. 

In  this  case,  the  defendant  being  the  lessee  in  possession  of  the 
premises,  the  plaintiff,  his  landlord,  with  his  consent,  let  them  to  a 
new  tenant,  and  put  him  in  possession,  and  discharged  the  defendant 
from  his  liability  as  tenant. 

The  judge  who  tried  the  case  held  that  these  facts  constituted  a 
surrender  by  operation  of  law,  and,  therefore,  a  defence  against 
the  plaintiff's  claim  for  rent.  The  correctness  of  that  holding  has 
been  brought  into  question  before  us  in  consequence  of  the  opinion 
expressed  by  the  Court  of  Exchequer  in  Lyon  v.  Reed,  13  M.  &  W. 
285,  305-310;  but  we  are  of  opinion  that  it  is  correct.  If  the  ex- 
pression "  surrender  by  operation  of  law  "  be  properly  "  applied  to 
cases  where  the  owner  of  a  particular  estate  has  been  party  to  some 
act,  the  validity  of  which  he  is  by  law  afterwards  estopped  from 
disputing,  and  which  would  not  be  valid  if  his  particular  estate 
had  continued,"  it  appears  to  us  to  be  properly  applied  to  the  pres- 
ent. As  far  as  the  plaintiff,  the  landlord,  is  concerned,  he  has 
created  an  estate  in  the  new  tenant  which  he  is  estopped  from  dis- 
puting with  him,  and  which  is  inconsistent  with  the  continuance  of 
the  defendant's  term.  As  far  as  the  new  tenant  is  concerned,  the 
same  is  true.  As  far  as  the  defendant,  the  owner  of  the  particular 
estate  in  question,  is  concerned,  he  has  been  an  active  party  in  this 
transaction,  not  merely  by  consenting  to  the  creation  of  the  new 
relation  between  the  landlord  and  the  new  tenant,  but  by  giving  up 
possession,  and  so  enabling  the  new  tenant  to  enter. 

If  the  defendant  cannot  technically  be  said  to  be  estopped  from  dis- 
puting the  validity  of  the  estate  of  the  new  tenant,  still,  according 
to  the  doctrine  of  Pichard  v.  Sears,  6  A.  &  E.  469,  he  would  be  pre- 
cluded from  denying  it  with  effect;  and  the  result  is  nearly  the 
same  as  an  estoppel.  If  an  act  which  anciently  really  was,  in 
contemplation  of  law,  and  has  always  continued  to  be,  an  act  of 
"  notoriety,  not  less  formal  and  solemn  than  the  execution  of  a  deed, 
such  as  livery,  entry,  acceptance  of  an  estate,  and  the  like  "  (Lyon 
V.  Reed,  13  M.  &  W.  309),  be  required  as  requisite  for  a  surrender 
by  operation  of  law,   and  if  the  acts  of  the  three  parties   are  re- 

1  Argued  before  Lord  Denman,  C.  J.,  Patteson,  Wightman,  and  Erle,  JJ. 


SECT.    IV J  NICKELLS    V.    ATHERSTONE  381 

garded  together,  this  requisite  is  here  found.  Indeed  the  notoriety 
is  essentially  greater  than  that  which  accompanies  a  parol  re- 
demise between  the  same  landlord  and  tenant,  which  is  a  clear  sur- 
render by  operation  of  law.  In  the  present  case  three  are  con- 
cerned, and  there  is  an  actual  change  of  possession;  in  the  other, 
two  are  concerned,  and  there  is  no  change  of  possession.  This  sur- 
render by  operation  of  law  has  been  judicially  recognized  in  each 
of  the  superior  courts:  Matthews  v.  Sawell,  8  Taunt.  270;  Thomas 
V.  Cooh,  2  B.  &  Aid.  119;  Walker  v.  Richardson,  2  M.  &  W.  882; 
Bees  V.  Williams,  2  C.  M.  k  R.  581,  s.  c.  Tyr.  &  G.  23;  and  held 
valid  at  Nisi  Prius  in  Stone  v.  Whiting,  2  Stark.  N.  P.  C.  235,  and 
many  subsequent  cases.  When  the  decisions  on  a  point  are  numer- 
ous and  uniform,  and  carry  into  effect  the  lawful  intentions  of  the 
parties  according  to  the  truth,  and  are  opposed  by  no  principle,  the 
law  on  the  point  ought  not  to  be  considered  doubtful  because  the 
reported  decisions  are  only  of  modern  date,  as  the  fact  that  the 
reports  on  the  point  do  not  begin  till  lately  may  arise  from  there 
being  no  question  on  the  point  in  earlier  times.  Indeed,  in  1809, 
it  seems  probable  that  a  restoration  of  the  possession  to  the  land- 
lord and  a  discharge  of  the  tenant  by  him  was  considered  a  sur- 
render by  operation  of  law.  The  defence  in  Mollett  v.  Brayne,  2 
Campb.  103,  was  shaped  on  that  principle;  but,  as  the  evidence 
failed  to  show  a  change  of  possession  by  mutual  consent  of  landlord 
and  tenant,  the  defence  failed.  In  Whitehead  v.  Clijford,  5  Taunt. 
518,  where  there  was  such  change  of  possession  by  mutual  consent, 
the  defence  to  a  claim  for  use  and  occupation  succeeded ;  and  the 
court  distinguished  the  case  fi-om  Mollett  v.  Brayne,  for  that  reason. 
Where  there  is  an  agreement  to  surrender  a  particular  estate,  and 
the  possession  is  changed  accordingly,  it  is  more  probable  that  the 
legislature  intended  to  give  effect  to  an  agreement  so  proved,  as  a 
surrender  by  operation  of  law,  than  to  allow  either  party  to  defeat 
the  agreement  by  alleging  the  absence  of  written  evidence.  Al- 
though we  do  not  assent  to  the  observations  upon  the  line  of  cases, 
from  Thom<is  v.  Cooh,  downwards,  in  the  learned  and  able  judg- 
ment given  in  Lyon  v.  Reed,  13  M.  &  W.  285,  Ave  wish  to  express 
our  entire  concurrence  in  the  decision  of  that  case.  The  question 
there  was  not  upon  the  estate  of  the  tenant  in  ])ossession  of  the 
premises,  but  upon  the  title  of  the  plaintiff  as  assignee  of  the  rever- 
sion; whether  a  lease  of  the  reversion,  granted  to  Ord  and  Planta 
in  1812,  for  ninety-nine  years,  could  be  presumed  to  be  surrendered, 
'from  the  fact  that  such  lease  was  found  among  the  deeds  of  the 
tenant  in  fee,  who  had  granted  in  1814  a  term  in  the  reversion  to 
Osborn  and  Burt,  through  whom  the  plaintiff  claimed.  There  was 
no  change  in  the  possession  of  the  land.  No  actual  change  in  the 
possession  of  the  reversion  could  be  made  a]>])Hr('nt ;  and  the  facts 
stated  lead  to  the  conclusion  that  Ord  and  Planta  did  not  know  of 
the  demise  to  Osborn  and  Burt ;  but  the  probability  is,  that  the  term 


382  NICKELLS    V.    ATHERSTONE  [CHAP.    VI 

in  them  as  trustees  had  been  forgotten  at  the  time  when  their  con- 
currence was  requisite  for  the  new  lease. 

As  the  defendant  is  entitled  to  our  judgment  on  this  point,  it  is 
not  necessary  to  consider  the  effect  of  his  letter  as  evidence  of  a 
surrender.  Bule  discharged.^ 

1  Tricst  &  Co.  V.  Goldstone,  173  Cal.  240,  accord.  See  Kinsey  v.  Minnick, 
43  Md.  112;  Davison  v.  Gent,  1  H.  &  N.  744. 

In  Wallis  v.  Hands,  L.  R.  [1893]  2  Ch.  75,  N.  had  in  1884  leased  certain 
land  to  P.  and  others.  In  1887  N.  leased  the  same  and  other  lands  to  plain- 
tiff. This  was  done  with  the  oral  assent  of  the  lessees  under  the  lease  of 
1884.  The  plaintiff  did  not  enter  into  possession  of  the  premises  covered  by 
the  lease  of  1884.  Chitty,  J.,  said,  page  81:— "The  plaintiff  (as  already 
stated)  has  never  been  in  possession  of  the  property  demised  by  the  lease  of 
1887;  consequently,  as  between  the  lessees  of  1884  and  those  claiming  under 
them  on  the  one  hand,  and  the  plaintiff  on  the  other,  there  has  been  no 
change  of  possession.  In  these  circumstances  it  is  contended  for  the  plain- 
tiff, as  a  proposition  of  law,  that  the  grant  of  a  new  lease  in  possession,  with 
the  oral  assent  merely  of  a  person  in  possession  under  a  prior  subsisting 
lease,  operates  as  a  surrender  in  law  of  the  prior  lease;  and,  consequently, 
that  such  grant  and  mere  oral  assent  are  sufficient  to  take  the  case  out  of  the 
operation  of  the  3rd  section  of  the  Statute  of  Frauds,  which  enacts  that  no 
leases  shall  be  surrendered  unless  by  deed  or  note  in  writing,  or  by  act  and 
operation  of  law.  .  .  .  The  question  again  raises  the  controversy  which  sub- 
sisted at  one  time  between  the  Courts  of  King's  Bench  and  the  Exchequer, 
illustrated  by  Thomas  v.  Cook,  2  B.  &  Al.  119,  and  Lijon  v.  Reed,  13  M.  & 
W.  285,  and  discussed  at  length  in  Smith's  Leading  Cases,  8th  ed.  vol.  ii.  p. 
884  et  seq.  But  it  appears  to  me  that  this  controversy  was,  so  far  as  con- 
cerns the  question  before  me,  set  at  rest  by  the  judgment  of  the  Court  of 
Exchequer  in  Davison  v.  Gent,  1  H.  &  N.  744.  In  Thomas  v.  Cook  there  was 
in  fact  a  change  of  possession,  the  old  tenant  Cook  having  gone  out  of  pos- 
session when  the  plaintiff  accepted  Perkes  as  his  tenant.  (See  the  observ^a- 
tions  of  Lord  St.  Leonards  in  Creagh  v.  Blood,  3  J.  &  Lat.  160).  In  his 
judgment  in  Davison  v.  Gent  Chief  Baron  Pollock  states  the  law  thus,  (1 
H.  &  N.  749) :  '  It  must  therefore  be  taken  to  be  established  that  where 
a  lessee  assents  to  a  lease  being  granted  to  another,  and  gives  up  his  own 
possession  to  the  new  lessee,  that  is  a  surrender  by  operation  of  law.'  This 
statement  appears  to  me  not  to  be  qualified  by  any  subsequent  expressions 
in  the  same  judgment.  It  substantially  reconciles  Thomas  v.  Cook,  2  B. 
&  Al.  119,  with  the  principles  enunciated  by  Baron  Parke  in  Lyon  v.  Reed, 
13  M.  &  W.  285,  so  far  as  relates  to  leases  in  possession.  It  is  not.  perhaps, 
.of  any  great  practical  importance  in  which  of  the  two  following  ways  the 
proposition  of  law  is  stated:  (1)  there  is  no  surrender  by  operation  of  law 
unless  the  old  tenant  gives  up  possession  to  the  new  tenant  at  or  about 
the  time  of  the  grant  of  the  new  lease  to  which  he  assents;  or  (2)  the 
change  of  possession  is  a  necessary  part  of  the  consent.  I  prefer,  however, 
the  first,  as  being  the  more  correct  form.  To  hold  that  mere  oral  assent 
to  the  new  lease  operates  as  a  surrender  in  law  would  be  a  most  dangerous 
doctrine:  it  would  practically  amount  to  a  repeal  of  the  Statute  of  Frauds, 
and  let  in  all  the  mischief  against  which  the  statute  intended  to  guard;  the 
policy  of  that  statute  is  carried  still  fin-ther  by  the  statute  8  &  9  Vict.  c.  106, 
s.  3,  which  requires  a  deed  in  cases  where  formerlv  a  mere  writing  would 
have  sufficed.  The  foundation  of  the  doctrine  that  the  acceptance  of  a 
new  lease  by  an  existing  tenant  operates  as  a  surrender  in  law  is  estoppel 
by  act  in  pais,  the  law  attributing  the  force  of  estoppel  to  certain  acts  of 
notoriety,  such  as  livery  of  seisin,  entry,  acceptance  of  an  estate,  and  the 


SECT.    IV]  SCHIEFFELIN    V.    CARPENTER  383 

SCHIEFFELIN  v.  CARPENTER  AND  OTHERS 
15  Wend.  (N.  Y.)  400.    1836. 

This  was  an  action  of  covenant,  tried  at  the  New  York  Circuit  in 
April,  1834,  before  the  Hon.  Ogden  Edwards,  one  of  the  circuit 
judges. 

The  plaintiff  declared  on  a  lease  under  seal,  made  by  him  to 
Edmund  T.  Carpenter,  bearing  date  1st  April,  1829,  demising  a 
dwelling-house  and  a  lot  of  ground  of  oVii  acres,  situate  in  the  twelfth 
ward  of  the  city  of  New  York,  for  the  term  of  six  years,  subject  to 
an  annual  rent  of  $325,  to  be  paid  quarterly.  The  lease  was  a  tri- 
partite indenture,  Daniel  S.  Hawkhurst  and  Daniel  Carpenter  being 
parties  thereto,  and  uniting  with  the  tenant  in  the  covenants  to  be 
performed  on  his  part;  and  they  were  joined  as  defendants  in  the 
suit  with  the  tenant.  The  defendants,  amongst  other  things,  cove- 
nanted for  the  payment  of  the  rent;  that  the  tenant  should,  during 
the  term,  keep  the  dwelling-houses,  fences  and  every  part  of  the  de- 
mised premises  in  good  condition  and  repair,  and,  at  the  expiration 
of  the  term,  yield  them  up  in  like  good  repair;  that  he  would  not 
remove,  injure  or  destroy  any  root,  plant,  bush  or  tree  growing  on  the 
premises,  or  suffer  the  same  to  be  done;  that  he  would  not  underlet 
or  assign  the  premises,  either  directly  or  by  operation  of  law,  with- 
out the  written  consent  of  the  landlord;  and  that  during  the  term, 
the  dwelling-house  should  not  be  occupied  as  a  public  house,  inn  or 
tavern,  without  the  like  written  consent.  The  plaintiff  assigned, 
as  breaches  of  the  covenants:  1.  That  on  the  1st  July,  1833,  there 
was  one  year's  rent  in  arrear  and  unpaid ;  2.  That  on  the  1st  Jan- 
uary, 1831,  the  tenant  permitted  the  dwelling-house  and  fences,  &c., 
to  fall  into  bad  condition,  and  to  become  ruinous  and  to  decay  for  the 
want  of  necessary  repairs,  and  so  permitted  them  to  remain  until 
the  commencement  of  the  suit;  3.  That  on  the  1st  January,  1831, 
he  suffered  fruit  trees,  gooseberry  bushes,  asparagus  roots,  and  orna- 
mental flowering  plants  growing  on  the  premises  to  be  lopped,  up- 
rooted, removed  and  destroyed  by  persons  and  animals;  4.  That  from 
1st  November,  1832,  until  1st  June,  1833,  the  dwelling-house  was 
used  and  occupied  as  a  puhlic  house,  without  the  consent  of  the 
plaintiff.  The  defendants  pleaded  the  general  issue,  and  gave  notice 
of  various  matters  to  be  proved  on  the  trial. 

On  the  trial  of  the  cause,  the  plaintiff  claimed  to  recover  the  rent 
of  a  quarter  of  a  year,  ending  1st  July,  1833,  and  damages  for 
breaches  of  the  covenants  to  keep  the  premises  in  repair,  and  not  to 
injure  them,  &c.     The  plaintiff  proved  that  the  premises  were  in 


like;  and  the  grant  of  a  new  lefase  to  a  stranger,  with  the  tenant'.^  assent, 
and  change  of  possession  preceding  or  following  the  lease,  bring  such  a  ca.se 
within  the  scope  of  the  same  doctrine,  which  mere  oral  assent  would  not  ilo. 


384  SCHIEFFELIN    V.    CARPENTER  [CHAP.   VI 

good  repair  at  the  date  of  the  lease,  and  when  the  tenant  went  in 
possession;  and  that  in  February,  1833,  the  dwelling-house  was  in  a 
ruinous  state,  the  fences  prostrated,  and  the  garden  wholly  destroyed, 
and  that  the  expense  of  putting  the  premises  in  repair  would  be 
between  $400  and  $500.  He  also  proved  that  the  premises  had  been 
occupied  for  a  year  by  two  men  of  the  name  of  Wood  and  Mat- 
thews, who  were  railroad  contractors,  and  had  many  persons  in  their 
employ  who  resided  on  the  premises.  The  defendant  offered  to  prove 
that  the  plaintiff  held  the  demised  premises  only  in  right  of  his 
vufe,  and  insisted  that  inasmuch  as  an  action  of  waste  might  be 
brought  in  the  name  of  the  husband  and  wife  in  the  character  of 
reversioners,  the  claim  of  damages  for  injury  to  the  demised  prem- 
ises ought  not  to  be  sustained  in  the  present  suit :  the  evidence  was 
rejected  by  the  judge.  The  defendants  also  offered  to  prove  that 
in  the  autumn  of  1831,  an  agreement  was  entered  into  between  the 
plaintiff,  the  defendant  Edmund  T.  Carpenter  and  two  persons  of 
the  names  of  Mills  and  Owen,  that  Carpenter  should  quit  and  sur- 
render up  the  premises  to  the  plaintiff,  that  the  lease  declared  on 
should  be  delivered  up  and  cancelled,  and  a  new  lease  of  the  prem- 
ises should  be  executed  by  the  plaintiff  to  Mills  and  Owens  for  the 
term  of  eight  or  ten  years.  That  in  pursuance  of  such  agreement, 
Carpenter,  in  the  autumn  of  1831,  surrendered  up  the  premises  to 
the  plaintiff,  and  paid  all  the  rent  then  due  to  the  plaintiff,  and 
Mills  and  Owen  took  possession  of  the  premises  and  occupied  the 
same  pursuant  to  such  agreement  as  tenants  to  the  plaintiff,  who 
accepted  them  as  such,  and  received  rent  from  them.  That  Mills 
and  Owen  occupied  the  premises  until  the  autumn  of  1832,  when 
they  left,  and  were  succeeded  in  the  possession  by  Wood  and  Mat- 
thews, to  whom  also  the  premises  were  let  by  the  plaintiff,  and  from 
whom  he  also  received  rent :  these  facts  the  defendants  offered  to 
establish  by  parol  proof.  The  counsel  for  the  plaintiff  objected  that 
parol  evidence  of  the  alledged  agreement  or  surrender  of  the  lease 
was  inadmissible;  and  also  that  the  evidence,  if  intended  to  be 
urged  in  discharge  of  the  covenants,  ought  not  to  be  received,  for 
the  reason  that  a  covenant  cannot  be  discharged  by  parol  before 
breach.  The  judge  sustained  the  objection.  The  defendants  then 
proved  that  Mills  and  Owen  went  into  possession  of  the  premises 
on  the  1st  November,  1831,  and  that  previous  to  their  entry,  Edmund 
T.  Carpenter  (the  tenant)  put  the  premises  in  as  good  repair  as 
they  were  in  when  he  entered;  they  were  thus  repaired,  because 
Mills  and  Owen  were  to  take  possession.  The  plaintiff,  on  being 
spoken  to  on  the  subject,  said  that  he  was  satisfied  with  the  repairs, 
if  Mills  and  Owen  were  satisfied.  It  was  also  proved,  that  after 
Mills  and  Owen  quit  the  premises,  they  w-ere  occupied  by  Wood 
and  Matthews,  who  had  a  large  number  of  men  in  their  employment 
as  laborers  on  a  railroad  and  housed  on  the  premises.  Wood  and 
Matthews  were  in  possession  six  months,  and  paid  rent  to  the 
.plaintiff. 


SECT.    IV]  SCHIEFFELIN    V.    CARPENTER  385 

The  counsel  for  the  defendants  insisted  that  the  plaintiff  was  not 
entitled  to  recover  in  this  action  more  than  nominal  damages  for 
the  breach  of  the  covenant  to  keep  the  premises  in  repair^  and  for  the 
injuries  done  to  the  premises,  as  the  tenant  might  put  the  premises 
in  complete  repair  before  the  end  of  the  term,  and  if  he  did  so  the 
plaintiff  would  have  no  cause  of  complaint ;  if  he  did  not  do  so,  then 
the  plaintiff"  would  be  entitled  to  bring  his  action,  and  to  recover 
damages,  and  requested  the  judge  so  to  charge  the  jury.  The  judge 
declined  to  do  so,  and,  on  the  contrary,  charged  the  jury  that  the 
plai^itiff  was  entitled  to  his  verdict  for  one  quarter's  rent,  (which 
was  admitted  to  be  all  that  was  due  at  the  bringing  of  the  suit;)  and, 
further,  that  they  were  not  bound  to  limit  their  verdict  on  the  cove- 
nant of  repairs  to  nominal  damages,  but  might  give  such  sums  as, 
under  all  the  circumstances,  they  should  consider  the  plaintiff  en- 
titled to  recover,  provided  they  were  satisfied  that  the  defendants 
had  violated  their  covenants.  The  jury  found  a  verdict  for  the 
plaintiff  with  $481.25  damages.  The  defendants  ask  for  a  new 
trial.     The  cause  was  submitted  on  written  arguments. 

By  the  Court.  (Nelson,  J.)  This  case  has  already  been  elabo- 
rately argued  upon  paper  by  the  respective  counsel,  and  all  the 
authorities  and  principles  bearing  upon  the  points  disputed,  have 
been  referred  to  and  examined;  and  were  it  not  for  some  recent 
cases  in  the  English  courts,  that  are  very  confidently  urged  by  the 
defendant's  counsel,  it  seems  to  me  there  would  be  but  little  difficulty 
in  disposing  of  the  case.  A  surrender  is  defined  to  be  a  yielding 
up  of  an  estate  for  life  or  years  to  him  who  hath  the  immediate 
estate  in  reversion  or  remainder,  wherein  the  estate  for  life  or  years 
may  drown  by  mutual  agreement.  Comyn's  Landlord  and  Tenant, 
337;  2  Co.  Lit.  551 ;  4  Cruise,  155;  4  Bacon's  Abr.  209 ;  Shep.  Touch. 
300,  307.  Before  the  Statute  of  Frauds  and  Perjuries,  any  form  of 
words  without  writing,  whereby  an  intention  appeared  to  surrender 
up  the  possession  of  the  premises  to  the  lessor  or  reversioner,  was 
sufficient  for  that  purpose.  This  was  called  a  surrender  in  fact. 
There  was  also  a  surrender  in  lau\  It  Avas  effected  by  the  acceptance 
of  a  new  lease  of  the  premises  from  the  lessor,  for  the  whole  or  a  part 
of  the  time  embraced  in  the  former  one,  because  it  necessarily  im- 
plied a  determination  and  surrender  of  that  lease;  otherwise  the 
lessor  would  be  unable  to  make  the  second,  or  the  lessee  to  enjoy 
it,  and  it  was  therefore  but  reasonable  to  presume  both  parties  in- 
tended to  waive  and  relinquish  the  benefit  of  the  first  one.  The 
second  lease,  before  the  Statute  referred  to,  of  course  need  not  have 
been  in  writing  to  operate  an  effectual  surrender  of  the  first  one. 
The  Statute  of  20  Car.  enacted  "  that  all  leases,  estates,  interests  of 
freehold  or  terms  of  years,  or  any  uncertain  interests  of,  in, 
to  or  out  of  any  lands,  (Src,  made  or  created  by  livery  and  sei/in 
only,  or  by  parol,  and  not  put  in  writing,  tSrc,  shall  have  the  force 
and  effect  of  leases  or  estates  at  will  only,"  &c.,  excepting  leases  not 


386  SCHIEFFELIN    V.    CARPENTER  [CHAP.    VI 

exceeding  the  term  of  three  years  from  the  making  thereof.  And 
also,  "  no  leases,  estates  or  interest  either  of  freehold  or  term  of 
years,  or  any  uncertain  interest,  &c.,  of,  in,  to  or  out  of  any  mes- 
suages, &c.,  shall  he  assigned,  granted  or  surrendered,  unless  by  deed 
or  note,  in  writing,  or  operation  of  law."  Our  Statute  (2  R.  S. 
134,  §  6)  provides  that  "  no  estate  or  interest  in  lands,  other  than 
leases  for  a  term  not  exceeding  one  year,  &c.,  shall  hereafter  he 
created,  granted,  assigned,  surrendered,  &c.,  unless  hy  act  or  opera- 
tion of  law,  or  by  deed  or  conveyance  in  writing,"  &c.,  §  8.  "  Every 
contract  for  the  leasing  for  a  longer  period  than  one  year,  &c.,  shall 
be  void,"  unless  in  writing.  Since  these  Statutes,  a  parol  lease  in 
England  for  more  than  three  years,  and  in  this  State  for  more  than 
one,  is  entirely  void;  though  if  the  tenant  enters  into  possession, 
he  shall  be  deemed  a  tenant  at  will,  and  for  the  purpose  of  notice 
to  quit,  from  year  to  year,  and  notwithstanding  the  lease  be  void, 
it  may  regulate  the  terms  of  holding  as  to  rent,  time  to  quit,  &c. 
5  T.  R.  471;  Comyn's  L.  &  T.  8;  Woodf.  14,  15;  4  Cow.  350;  7  Id. 
751.  But  as  a  lease  for  the  purposes  for  which  it  was  given,  it  is 
considered  wholly  void.  It  is,  however,  conclusively  settled  by 
authority,  that  the  second  lease  must  be  a  valid  one,  so  as  to  convey, 
the  interest  it  professes  to  convey,  to  the  lessee,  and  also  to  bind  him 
to  the  performance  of  the  covenant  or  agreement  in  favor  of  the 
lessor,  in  order  to  operate  as  an  effectual  surrender  of  the  first  one. 
3  Burr.  1807;  4  Id.  1980,  2210;  6  East,  86;  Comyn's  Dig.  tit.  Estate, 
G.  13;  4  Bac.  Abr.  215.  Without  this,  the  reason  before  given  for 
the  implied  surrender  would  fail,  and  the  intent  of  the  parties  be 
altogether  defeated.  Instead  of  being  but  a  surrender  of  the  first 
lease,  it  would  be  a  surrender  of  the  whole  estate  and  interest  in 
the  premises,  and  a  virtual  determination  of  the  existence  of  any 
tenancy.  ISTow  the  ground  upon  which  the  surrender  in  this  case 
is  mainly  argued  is,  not  that  a  new  lease  was  given  to  the  original 
lessee,  but  that  it  was  given  to  Mills  and  Owen  with  his  consent,  for 
the  period  of  eight  or  ten  years.  Assuming  this,  amounts  to  the 
same  as  if  given  to  Carpenter;  it  is  impossible  to  maintain  that  any 
valid  lease  has  been  proved  in  the  case,  or  any  lease  whatever  for  a 
definite  period.  The  most  that  was  offered  to  be  proved  was,  that 
Mills  and  Owen  went  into  possession  with  the  consent  of  the  defend- 
ants, under  a  parol  agreement  for  a  lease  for  eight  or  ten  years; 
and  if  it  be  viewed  as  an  agreement  for  a  lease,  or  as  a  virtual  lease 
for  that  time,  it  is  void  under  the  Statute,  and  could  not  be  enforced 
by  either  of  the  parties.  An  implied  tenancy  at  will  only  was 
created,  which  enabled  Mills  and  Owen  to  hold  from  year  to  year, 
for  the  purpose  of  notice  to  quit,  but  which  they  could  terminate  at 
any  moment  they  pleased.  The  agreement  and  entry  in  pursuance 
of  it  conferred  no  rights  upon  the  plaintiff,  further  than  to  recover 
his  rent  while  they  continued  to  occupy,  and  perhaps  a  quarter's 
rent,  if  they  abandoned  the  ocupation  after  the  commencement  of  a 
quarter  and  before  its  termination. 


SECT.    IV]  SCHIEFFELIN    V.    CARPENTER  387 

Suppose  this  agreement  had  been  made  with  the  original  tenant, 
and  the  defendants  can  claim  no  more  from  it  as  offered  to  be 
proved,  could  it  be  contended  that  it  operated  as  a  virtual  surrender 
of  the  lease  for  six  years,  and  that  the  plaintiff  could  dispossess  the 
tenant  on  giving  six  months'  notice  to  quit  ?  This  would  be  the 
consequence  of  the  doctrine  urged  in  the  defence.  The  tenant  would 
become  a  mere  tenant  at  will.  The  authorities  already  referred  to 
clearly  establish  that  the  second  lease,  to  have  the  effect  claimed, 
must  pass  the  interest  in  the  premises  according  to  the  contract,  or 
in  other  words,  carry  i^nto  legal  effect  the  intent  of  the  parties  exe- 
cuting it.  3  Burr.  1807;  4  Id.  1980,  2210;  Comyn's  Dig.  tit.  Estate, 
9,  12;  6  East,  661;  6  "Wendell,  569;  1  Saund.  236,  b.  n.  It  is  stated 
by  Baron  Gilbert,  4  Bacon's  Abr.  210,  that  since  the  Statute  of 
Frauds  the  new  lease  must  be  in  writing  in  order  to  operate  as  an 
implied  surrender  of  the  old  one,  for  it  is  then  of  equal  notoriety 
with  a  surrender  in  writing.  This  position  is  also  adopted  by 
Serjeant  Williams,  in  his  notes  upon  the  case  of  Tliurshy  v.  Plant, 
1  Saund.  236,  n.  b.  But  as  surrenders  by  operation  of  law  are 
expressly  excepted  out  of  the  Statute,  as  a  necessary  consequence 
they  are  left  as  at  common  law;  and  there  it  is  clear  it  need  not  be 
in  writing  to  have  the  effect  to  surrender  the  old  one,  even  if  by 
deed.  2  Starkie's  Ev.  342 ;  20  Viner,  143,  L.  pi.  1,  n. ;  1  Saunders, 
236,  n.  c.  I  am  inclined  therefore  to  think  that  a  valid  parol 
lease,  since  the  Statute,  might  produce  a  surrender  in  law  within 
the  reason  and  principle  upon  which  this  doctrine  is  founded.  The 
true  rule  seems  to  be  that  laid  down  by  Mr.  Starkie,  2  Starkie's  P]v. 
342,  as  follows:  the  taking  a  new  lease  by  parol  is  by  operation  of 
law  a  surrender  of  the  old  one,  although  it  be  by  deed,  provided  it 
be  a  good  one,  and  pass  an  interest  according  to  the  contract  and 
intention  of  the  parties;  for  otherwise  the  acceptance  of  it  is  no 
implied  surrender  of  the  old  one. 

If  the  first  lease  in  this  case  has  not  been  surrendered,  then  there 
is  no  ground  of  defence  against  the  action  upon  the  express  cove- 
nants contained  in  it,  even  if  we  should  concede  a  legal  assignment 
from  the  tenant  to  Mills  and  Owen,  and  the  acceptance  of  them 
expressly  or  impliedly  by  the  plaintiff.  4  T.  K.  98,  100;  1  Saund. 
241,  n.  5;  Woodf.  278;  Cro.  Car.  188;  Comyns's  Land,  and  Tenant, 
275,  and  cases  there  cited.  But  the  plaintiff  stipulated  against 
assignment  or  underletting  unless  permission  was  given  in  writing, 
and  a  parol  license  is  therefore  inoperative.  2  T.  R.  425;  3  Id.  590; 
3  Madd.  218;  Piatt  on  Gov.  427.  This  clause  in  a  lease  would  be 
nugatory,  if  courts  should  allow  parol  evidence  to  control  in  the 
matter.  Besides,  a  parol  asmignmenf  is  void  under  the  Statute  of 
Frauds.  The  casn  of  Thomas  v.  Cnnl-.  2  Starkie's  B.  408,  is  supposed 
to  have  a  strong  benring  upon  this  one.  In  tliMt  onso  there  Avas  a 
pa.rn]  Jrasp  from  yrar  In  year  to  Cook,  who  underlet  to  Pnrkcs.  The 
rent  being  in  arrear,  Thomas  distrained  upon  him,  and  he  ]iaid  :t 


388  SCHIEFFELIN    V.    CARPENTER  [CHAP.   VI 

by  a  bill  of  exchange;  on  receiving  which  he  declared  he  would  have 
nothing  more  to  do  with  Cook.  Afterwards,  however,  he  brought 
his  action  against  him  for  rent  then  due.  For  the  plaintiff,  it  veas 
insisted  that  there  was  no  surrender  within  the  Statute  of  Frauds. 
Abbott,  C.  J.,  left  it  to  the  jury  to  say,  whether  the  plaintiff  had  not 
accepted  Parkes  as  his  tenant,  with  the  assent  of  Cook ;  and  the  jury 
finding  in  the  affirmative,  the  plaintiff  was  nonsuited.  The  court 
at  the  ensuing  term,  when  the  case  was  moved,  were  of  opinion  there 
was  a  surrender  by  operation  of  law.  They  say  if  a  lessee  assign 
and  the  lessor  accept  the  assignee  of  the  lessee  as  his  tenant,  that 
in  point  of  law  puts  an  end  to  the  privity  of  estate,  and  an  action  of 
debt  cannot  be  brought  to  recover  the  rent.  That  I  admit  to  be 
true,  but  if  the  lease  had  been  in  writing,  according  to  the  cases 
above  cited,  a  suit  might  still  be  maintained  upon  the  express  cove- 
nant in  it,  though  the  privity  of  estate  was  gone.  Besides,  the  assign- 
ment was  void  as  such  under  the  Statute  of  Frauds.  1  Campb.  318; 
5  Bing.  25 ;  Comyn's  Land.  &  Ten.  55,  and  cases  there  cited :  Woodf . 
277.  Again,  the  court  say  it  is  a  rule  of  law,  that  the  acceptance 
of  a  subsequent  lease  by  parol  operates  as  a  surrender  of  a  former 
lease  by  deed.  That  is  true  under  the  circumstances  we  have  before 
endeavored  to  explain,  and  is  undoubtedly  the  legal  ground  upon 
which  that  case  may  be  maintained.  The  case  sufficiently  shows 
that  the  implied  parol  demise  to  Parkes  was  a  valid  one  to  the 
extent  intended  by  both  parties :  the  one  to  Cook  was  a  lease  from 
year  to  year,  and  the  acceptance  of  Parkes,  as  tenant  in  his  place, 
impliedly  gave  him  the  same  tenure  and  term ;  no  writing  was  neces- 
cary  for  that  purpose.  This  is  the  ground  upon  which  the  case 
is  said  to  stand  by  the  court,  in  commenting  upon  it  in  a  subsequent 
term.     4  Barn.  &  Cres.  922. 

In  the  case  of  Grimman  v.  Legge,  8  Barn.  &  Cres.  324,  the  lease 
was  by  parol  for  one  year,  for  the  first  and  second  floor  of  a  house; 
a  dispute  having  arisen  before  the  end  of  the  year,  the  tenant  said 
she  would  quit.  The  landlord  said  he  would  be  glad  to  get  rid  of 
her.  She  accordingly  left  the  premises,  and  possession  was  taken  hy 
him.  The  facts  were  submitted  to  the  jury,  to  presume  a  rescind- 
ment  of  the  original  contract  between  the  parties.  The  case  of 
Stone  v.  Whiting,  2  Starkie,  235,  is  precisely  like  the  case  of  Thomas 
V.  CooTc,  and  stands  upon  the  same  principle.  In  the  case  of  White- 
head V.  Clifford,  5  Taunt.  518.  the  lease  was  by  parol  from  year  to 
year,  and  stands  upon  the  footing  of  Grimman  v.  Legge.  In  the 
case  of  Hamerton  v.  Stead,  3  Barn.  &  Cres.  478,  a  tenant  from  year 
to  year  entered  into  an  agreement  in  writing  for  a  lease  to  him 
and  another,  and  from  that  time  both  occupied.  It  was  held  that 
the  new  agreement,  coupled  with  the  joint  occupation,  determined 
the  former  tenancy,  and  operated  as  a  surrender  in  law,  though  the 
lease  contracted  for  was  never  granted.  If  the  new  agreement  and 
occupation  were  viewed  as  a  tenancy  from  year  to  year,  which  was 


SECT.    IV]  ADAMS    V.   BURKE  389 

of  equal  tenure  with  the  first  lease,  there  was  at  least  no  hardship 
in  this  decision.  The  judges  obviously  were  somewhat  embarrassed 
in  their  endeavors  to  place  the  case  upon  principle,  and  some  of  their 
observations  conflict  with  the  case  in  6  East,  86,  which  they  admitted 
to  be  good  law.  The  first  case  was  by  parol  from  year  to  year,  and 
might  well  have  been  put  upon  the  footing  of  the  cases  to  which  I 
have  referred,  where  the  facts  were  submitted  to  the  jury  to  find 
the  first  contract  rescinded. 

The  law  seems  to  be  well  settled,  that  under  a  covenant  to  repair 
like  the  one  in  question,  the  landlord  need  not  wait  till  the  expira- 
tion of  the  term  before  bringing  an  action  for  the  breach,  under  an 
idea  that  the  tenant  may,  before  he  leaves  the  premises,  put  them  in 
good  condition.  1  Barn.  &  Aid.  584;  2  Ld.  Raym.  803,  1125;  1 
Salk.  141;  Piatt  on  Gov.  289;  Comyn's  Land.  &  Ten.  210.  If  the 
covenant  was  only  to  leave  the  premises  in  as  good  a  condition  as 
the  tenant  found  them,  it  seems  an  action  would  not  lie  till  the  end 
of  the  term.     Shep.  Touch.  173;  Piatt  on  Gov.  289. 

The  defendants  cannot  question,  in^  this  action,  the  title  of  the 
landlord.  The  action  is  upon  an  express  covenant  between  the 
parties,  and  the  suit,  if  sustained  at  all,  must  be  by  the  plaintiff 
alone.  New  trial  denied. 


ADAMS  V.  BURKE 
21  R.  I.  126.    1898. 

Covenant  by  lessor  against  lessee  for  rent  due  under  a  written 
lease  which  had  been  assigned  by  the  lessee,  the  lessor  having  ac- 
cepted certain  of  the  rent  from  the  assignee.  Heard  on  defendant's 
petition  for  a  new  trial. 

Per  Guriam.  The  testimony  fails  to  show,  as  claimed  by  the  de- 
fendant, that  the  plaintiff  was  notified  of  the  assignment  of  the  lease 
and  accepted  the  assignee  as  lessee  in  place  of  the  defendant.  The 
law  is  well  settled  that  a  mere  assignment  of  a  lease  and  an  accept- 
ance of  rent  by  the  lessor  from  the  lessee  do  not  preclude  the  lessor 
from  maintaining  an  action  of  covenant  against  the  lessee  on  his 
covenant  for  the  payment  of  rent.  Almy  v.  Greene.  13  R.  T.  350; 
FJefrher  v.  McFarlane,  12  Mass.  43;  Wall  v.  Einds,  4  Gray,  256; 
Anriol  v.  Mills,  4  Durn.  &  E.  (Term  Rep.)  94.  The  direction  of  the 
Common  Pleas  Division  to  return  a  verdict  for  the  plaintiff  was 
correct. 

Defendant's  petition  for  new  trial  denied  and  dismissed,  and  case 
remitted  to  the  Common  Pleas  Division  with  direction  to  enter 
judgment  on  the  verdict.^ 

^  MrKpe  Caah  Store  v.  Otero,  19  Ariz.  418:  Bonnrtti  v.  Treat.  91  Cal. 
223:  Cue.<<tn  v.  Goldsimith,  1  Ga.  App.  48:  f/arm  v.  Ucarknan.  62  Iowa  411; 
Detroit  Pharmaeal  Co.  v.  Burt,  124  Mich.  220;  Fees  v.  Lowy,  57  Minn.  381; 


390  DODD   AND   DA  VIES    V.    ACKLOM  [CHAP.   VI 

DODD  AND  DAVIES  v.  ACKLOM 
6  M.  &  W.  672.     1843. 

Assumpsit  for  use  and  occupation.     Plea,  Non  assumpsit. 

At  the  trial  before  Ershine,  J.,  at  the  sittings  for  Westminster 
in  last  Trinity  Term,  the  follojving  facts  were  proved  in  evidence. 

On  the  7th  of  October,  1842,  the  plaintiffs,  by  lease  in  writing 
signed  by  both  of  them,  demised  a  house  to  the  defendant,  at  a  yearly 
rent,  payable  quarterly.  The  defendant's  wife  received  the  key  from 
the  wife  of  the  plaintiff  Dodd,  and  the  defendant  entered  into  pos- 
session, and  after  communicating  with  Dodd  upon  the  subject,  began 
to  whitewash  and  paper  part  of  the  premises.  The  defendant  after- 
wards discovered  that  a  considerable  amount  of  rent  was  in  arrear 
to  the  superior  landlord;  that  the  land-tax  and  water-rate  were  also 
in  arrear ;  and  he  thereupon  remonstrated  with  Dodd.  About  Christ- 
mas the  key  of  the  front  door  was  delivered  up  by  the  defendant's 
wife  to  Dodd,  and  accepted  by  him.  It  was  contended  on  the  part  of 
the  plaintiffs  that  this  was  not  sufficient  to  constitute  a  surrender 
by  act  and  operation  of  law,  under  the  29  Car.  2,  c.  3,  §  3,  especially 
as  it  was  not  shown  that  the  defendant's  wife  had  authority  to  give 
up  the  key;  and  that,  at  any  rate,  a  surrender  to  one  plaintiff  would 
not  inure  as  a  surrender  to  both. 

The  learned  judge  told  the  jury  that  the  plaintiffs  were  entitled 
to  a  verdict,  unless  the  jury  thought  that  the  plaintiffs  had,  by  some 
act,  prevented  the  defendant  from  having  a  beneficial  occupation  of 
the  premises;  or  unless  the  tenancy  had  been  put  an  end  to  by  all 
parties  before  any  rent  became  due;  and,  further,  that  if  the  jury 
thought  that  the  defendant's  wife  had  authority  from  her  husband 
to  deliver  up  the  possession  by  giving  up  the  key,  and  had  done  so, 
and  that  the  plaintiff  Dodd  had  accepted  it,  also  having  authority 
from  the  other  plaintiff  so  to  do,  that  would  amount  to  a  surrender 
of  the  tenancy  by  ■  act  and  operation  of  law,  and  the  defendant 
would  be  entitled  to  a  verdict. 

The  jury  having  returned  a  verdict  for  the  defendant. 

TiNDAL,  C.  J.     Two  questions  arise  in  this  case.     First,  whether, 


Edivards  v.  Spalding,  20  Mont.  54;  Bouscaren  v.  Broum,  40  Neb.  722;  Decker 
V.  Hartshorn,  60  N.  J.  L.  548;  Laughran  v.  Smith,  75  N.  Y.  205;  McFarland 
v.  Mayo,  162  Pac.  (Okl.)  753;  Frank  v.  Maguire,  42  Pa.  77;  Kanawha  Co. 
v.  Sharp,  73  W.  Va.  427;  Bailey  v.  Wells,  8  Wis.  141,  accord.  See  Saul- 
paugh  V.  Hamilton,  64  Colo.  139;  HouMon  v.  Barnett,  90  Oreg.  94. 

But  acceptance  of  rent  combined  with  other  circumstances  has  been  held 
to  create  a  surrender.  Morgan  v.  McCollister,  110  Ala.  319;  Brovm  v. 
Hallett,  190  Pac.  (Colo.)  429;  Fry  v.  Partridge,  73  111.  51;  Keeley  v. 
Beenblossom,  183  Iowa  861;  Rogers  v.  Dockstadcr,  90  Kan.  189;  Hutcheson 
V.  Jones,  79  Mo.  496;  Wells  v.  Wamick,  198  S.  W.  (Mo.  App.)  1121;  Washoe 
Bmk  V.  Campbell,  41  Nev.  153;  Jamison  v.  Reilly,  92  Wash.  538.  And 
see  In  re  Sherwood,  210  F.  R.  754;  Kinsey  v.  Minnick,  43  Md.  112. 


SECT.    IV]  DODD    AND    DAVIES    V.    ACKLOAI  391 

under  the  circumstances,  there  was  a  surrender  of  the  premises  by 
the  tenant  by  act  and  operation  of  law,  within  the  meaning  of  the 
Statute  of  Frauds;  and  secondly,  whether,  supposing  there  was  such 
a  surrerlder,  Davies,  one  of  the  joint  lessors,  was  affected  by  that 
surrender.  And  I  am  of  opinion,  upon  the  evidence,  that  there  was 
a  sufficient  surrender,  and  that  Davies  was  bound  by  the  acts  of 
Dodd,  his  co-lessor.  There  was  undoubtedly  no  formal  surrender 
by  deed  or  note  in  writing;  but  it  is  clear  there  may  be  a  surrender 
by  act  and  operation  of  law,  where  there  is  a  change  of  possession. 
By  the  old  law,  before  the  Statute  of  Frauds,  if  a  lessee  took  a  new 
lease  from  the  lessor  it  would  operate  as  a  surrender  of  the  former 
term,  although  the  second  lease  were  for  a  shorter  period  than  the 
first,  or  were  by  parol;  and  the  reason  is,  that  the  lessee,  by  taking 
the  second  lease,  affirms  that  the  lessor  is  able  to  make  such  lease.^ 
So,  where  there  has  been  a  change  of  possession,  with  the  assent  of 
both  parties,  it  amounts  to  a  surrender  of  the  term  by  act  and  opera- 
tion of  law. 

The  present  case  is  not  like  Doe  d.  Ilnddleston  v.  Johnston  [M'Clel. 
&  Y.  141],  where  the  second  tenant  was  never  substituted,  nor 
MoUeit  V.  Brayne  [2  Campb.  103],  where  the  landlord  told  the 
tenant  that  he  might  go,  but  that  he  would  hold  him  to  the  payment 
of  rent.  Here,  there  is  evidence  that  after  a  lease  in  writing  had 
been  executed,  the  tenant  finding  that  the  ground-rent  and  land- 
tax  were  due,  and  that  there  was  a  dispute  as  to  the  payment  of  the 
water-rate,  felt  a  disinclination  to  continue  in  possession.  I  am  not 
prepared  to  say  that  if  the  landlords  had  known  this  state  of  facts, 
and  had  concealed  them  from  the  tenant,  there  might  iiot  have  been 
an  action  for  deceit  by  the  tenant  against  the  landlords.  It  is  true 
that  the  defendant  enters  into  possession,  and  that  he  proceeds  to 
paper  and  whitewash  some  part  of  the  premises;  but  some  time 
about  Christmas  his  wife  delivers  the  key  of  the  house  to  the  plain- 
tiff Dodd.  Now  the  first  question  is.  Was  that  a  change  of  posses- 
sion? The  jury  have  found  there  was  such  a  change,  by  consent  of 
both  parties;  and  that  amounts  therefore  to  a  surrender  by  act  and 
operation  of  law.  The  key  was  shown  to  have  been  delivered  to 
the  plaintiff  Dodd;  and  when  a  given  state  of  things  has  been  shown 
to  exist,  the  law  will  assume  that  it  continues  unless  a  change  be 
shown.  The  natural  presumption,  therefore,  is  that  the  key  re- 
mained in  Dodd's  possession. 

One  objection  that  has  been  taken  is,  that  the  defendant's  wife 
could  not  bind  her  husband  by  the  delivery  of  the  key.  But  avc  must 
look  at  all  the  circumstances  of  the  case.  The  key  was  first  de- 
livered by  the  wife  of  the  plaintiff  Dodd  to  the  wife  of  the  defend- 

1  Plowd.  106,  107  a.  But  there,  both  Portman,  J.,  and  Bromley,  C.  J., 
state  that  it  is  a  surrender  by  the  courf^c  of  the  common  law  (viz.  by  the 
act  of  the  parties  acting  according  to  the  common  law),  not  a  surrender  by 
operation  of  law.  —  Rep. 


392  DODD   AND   DA  VIES    V.    ACKLOM  [CHAP.   VI 

ant;  and  from  her  Dodd  afterwards  received  the  key  back.  I  think 
therefore  there  is  no  objection  on  the  ground  of  the  want  of  author- 
ity in  the  defendant's  wife. 

Then  the  last  question  is,  whether  the  plaintiff  Davies  is  affected 
by  the  acts  of  Dodd,  And  here  we  must  look  to  the  circumstances 
again.  Davies  signs  the  lease,  it  is  true,  but  he  is  then  lost  sight  of. 
Dodd  always  acts  in  the  business.  The  application  by  the  defend- 
ant as  to  the  repairs,  is  made  to  Dodd.  And  there  are  many  other 
circumstances  in  which  Dodd  was  concerned  and  not  Davies.  1 
think  it  was  properly  left  to  the  jury  to  say  whether  Dodd  was  not 
to  conduct  the  whole  business.  Upon  the  whole  therefore  it  appears 
to  me  that  the  case  was  properly  submitted  to  the  jury. 

With  respect  to  the  evidence,  there  is  no  affidavit  to  negative  the 
receipt  of  the  key  by  Dodd;  and  I  see  no  reason  to  disturb  the  ver- 
dict upon  this  ground. 

I  think  the  rule  must  be  discharged. 

CoLTMAN,  J.  I  am  of  the  same  opinion.  Upon  the  question  of 
surrender  by  oj)eration  of  law,  there  is  jjrima  facie  a  good  deal  of 
difficulty  as  to  the  precise  meaning  of  the  term  as  used  in  the  Statute 
of  Frauds.  Probably  the  expression  referred  to  such  surrenders 
as  were  then  known,  and  which  are  mentioned  in  Plowden.^  Sub- 
sequent cases  have  gone  much  further  than  the  old  doctrine.  In 
Thomas  v.  Cooh,  2  B.  &  A.  119;  2  Stark.  N.  P.  C.  408,  it  appeared 
that  the  plaintiff  had  originally  let  the  premises  to  the  defendant 
as  tenant  from  year  to  year.  After  the  defendant  had  resided  there 
for  some  time,  he  underlet  them  to  one  P.  commencing  at  Christmas, 
1806.  At  Lady  Day,  1807,  the  defendant  distrained  upon  P.  for  rent 
in  arrear.  Rent  being  then  due  from  the  defendant  to  the  plaintiff, 
the  latter  gave  notice  to  P.  not  to  pay  the  rent  to  the  defendant, 
but  to  pay  it  to  him;  and  upon  the  defendant's  refusing  to  take  P.'s 
bill  for  the  amount  then  due,  the  plaintiff  agreed  to  take  it  himself 
in  payment  of  the  rent  due  from  the  defendant  to  him,  saying  that 
he  would  not  have  anything  more  to  do  with  the  defendant;  and  in 
the  following  October,  the  plaintiff  himself  distrained  upon  the 
goods  of  P.  for  rent  in  arrear.  It  was  held  that  these  circumstances 
constituted  a  valid  surrender  of  the  defendant's  interest  by  act  and 
operation  of  law,  within  the  Statute  of  Frauds.  So,  in  Grimmann 
V.  Legge,  8  B.  &  C.  324;  2  M.  &  R.  438,  it  was  also  decided  that 
where  there  is  an  agreement  between  the  landlord  and  tenant  that  the 
latter  shall  deliver  up  possession,  and  possession  is  delivered  up 
accordingly,  that  is  a  surrender  by  operation  of  law.  In  the  present 
case  I  think  there  was  sufficient  evidence  of  such  a  surrender.  Mol- 
le.tt  V.  Brayne  and  Doe  d.  Huddleston  v.  Johnston  are  quite  distinct 
from  Grimmann  v.  Legge.  In  MolJeff  v.  Brayne  it  was  not  shown 
that  the  landlord  took  possession.    In  Doe  d.  Huddleston  v.  Johnston 

1  In  Ful.merston  v.  Stcivard,  p.  106.  And  see  Bac.  Abr.  tit.  Leases  and 
Terms  for  Years  (S)  3.  —  Rep. 


SECT.    IVj  DODD   AND   DAVIES    V.    ACKLOM  393 

the  agreement  to  put  an  end  to  the  tenancy,  was  never  carried  out. 
In  the  present  case  the  jury  have  found  that  the  key  was  delivered 
up  with  the  intent  that  the  landlord  should  resume  possession;  and 
that  amounts  to  a  surrender  by  operation  of  law. 

Then  comes  the  further  question  whether  Davies  was  bound  by  the 
act  of  Dodd.  Upon  this  point  I  have  found  a  little  difficulty  in 
making  up  my  mind ;  but  it  appears  to  me  upon  the  whole  —  the 
management  of  the  business  being  left  entirely  to  Dodd  —  that 
there  was  evidence  to  warrant  the  jury  in  inferring  that  Dodd  had 
authority  to  act  for  his  co-lessor  Davies.  That  puts  the  case  out 
of  the  rule  in  Reid  v.  Tucker  [Cro.  Eliz.  802],  which  is  applicable 
only  where  one  joint  tenant  acts  for  the  other  without  authority, 
or  where  the  only  authority  is  that  which  is  to  be  implied  from  the 
relation  in  which  they  stand  to  each  other  as  such  joint  tenants. 

As  to  the  weight  of  evidence,  I  am  of  opinion  that  the  verdict 
was  correct. 

.  Maule,  J.  I  also  tbiiik  this  rule  must  be  discharged.  As  to  the 
evidence,  I  think  it  was  sufficient  to  support  the  verdict.  As  to  the 
alleged  misdirection,  I  think  there  was  none.  This  was  an  action 
of  assumpsit  for  use  and  occupation,  in  which  the  plaintiffs  say  that 
the  defendant  is  indebted  to  them  for  the  occupation  of  certain 
premises.  The  defendant  denies  his  liability.  The  question  is, 
Avhether,  on  a  certain  day  —  namely  on  the  day  on  which  by  the 
original  lease  the  rent  would  fall  due  —  the  defendant  was  occupy- 
ing the  premises  with  the  consent  of  the  plaintiffs  so  as  to  give  rise 
to  an  implied  promise  on  his  part.  Now  if  one  of  the  plaintiffs 
had  put  the  defendant  out  of  possession,  it  might  be  a  question 
whether,  it  being  a  joint  contract,  they  could  both  sue  upon  it.  But 
supposing  there  was  an  authority  on  the  part  of  Dodd  to  act  for 
Davies  in  accepting  the  key,  then  there  is  no  doubt  that  there  was 
a  surrender  of  the  premises  by  operation  of  law.  It  seems  clear, 
from  all  the  circumstances,  that  Dodd,  being  the  managing  owner, 
was  satisfied  with  the  authority  of  Mrs.  Acklom  to  give  up  the  key; 
and  that  is  quite  sufficient  against  his  joint  tenant. 

Erskine,  J.  Having  the  sanction  of  the  rest  of  the  court  for  the 
way  in  which  I  left  the  case  to  the  jury,  I  shall  say  nothing  as  to 
the  law.    And  as  to  the  verdict,  I  am  by  no  means  dissatisfied  with  it. 

Rule  discharged.^ 

1  Sop  Roscnblnm  v.  Uhrr,  256  F.  R.  584,  589;  Fehringer  v.  Wagncr- 
Stockhridqc  Co.,  61  Colo.  359;  WUhrr>^  v.  Larrabcc,  48  Me.  570;  Newton  v. 
Spearc  Co.,  19  R.  I.  546,  ante  p.  298.  Compare  Led.vngrr  v.  Burke,  113  Ga. 
74;  Reeves  v.  MrComcfkcy,  168  Pa.  571;  Phcne  v.  PopplcwcU,  12  C.  B. 
N.  S.  334;   Oastlcr  v.  Henderson,  2  Q.  B.  D.  575. 


394  PEOPLES   EXPRESS    CO.    V.   QUINN  [CHAP.   VI 

PEOPLES  EXPRESS  CO.,  INC.,  v.  QUINN  AND  OTHERS 

235  Mass.  156.    1920. 

Bill  in  Eqttity,  filed  in  the  Superior  Court  on  Marcli  31,  1919, 
to  enjoin  the  defendants,  owners  and  lessors  of  a  building  occupied 
in  part  by  the  plaintiff  as  lessee,  from  tearing  down  the  leased 
premises. 

In  the  Superior  Court,  the  suit  was  heard  by  Jenny,  J.,  a  com- 
missioner having  been  appointed  under  Equity  Rule  35  to  take  the 
evidence.  Material  facts  found  by  the  judge  are  described  in  the 
opinion.  By  order  of  the  judge,  a  decree  was  entered  dismissing  the 
bill  with  costs.    The  plaintiff  appealed. 

De  Cotjrcy,  J.  The  plaintiff,  as  lessee,  seeks  by  this  bill  in  equity 
to  restrain  the  defendants,  who  are  the  lessors  and  owners,  from 
doing  certain  acts  in  the  process  of  tearing  down  a  building  in  which 
the  leased  premises  are  situated.  The  following  material  facts  were 
found  by  the  trial  judge. 

The  defendants,  copartners  under  the  name  of  Amesbury  Asso- 
ciates, executed  and  delivered  to  the  plaintiff  a  lease  of  a  store  and 
room  overhead,  a  portion  of  a  building  numbered  4  Market  Square 
in  Amesbury,  for  five  years  from  October  1,  1918.  The  plaintiff 
sublet  a  portion  of  the  premises  to  one  Sam  Levine,  with  the  consent 
of  the  defendants.  In  March,  1919,  the  associates  desired  to  erect 
a  new  brick  building  on  the  site  of  the  leased  premises  and  of 
adjoining  land  owned  by  them,  and  had  plans  prepared  for  that  pur- 
pose. They  had  interviews  with  Levine  and  one  McCarthy  (who 
was  duly  authorized  to  act  for  the  plaintiff) ;  and  it  was  orally  agreed 
by  all  the  parties,  in  substance,  as  follows :  The  plaintiff  and  Levine 
should  surrender  possession  of  the  leased  premises;  the  defendants 
should  provide  for  them,  free  of  rent,  until  the  new  building  was 
ready  for  occupation,  a  store  in  which  to  carry  on  their  business, 
and  bear  all  the  expense  of  moving  their  goods  and  effects  to  the 
new  location;  and  they  should  give  the  plaintiff  and  Levine  a  lease 
of  a  store  in  the  contemplated  building  for  a  time  as  long  as  the 
remainder  of  their  present  term,  and  at  the  same  rental.  McCarthy 
and  Levine  visited  the  store  which  was  to  be  provided  for  their  iise 
during  the  construction  of  the  new  building,  and  agreed  to  accept 
the  same. 

After  said  oral  agreement  was  made,  and  in  reliance  thereon,  the 
defendants  hired  the  store  for  the  temporary  occupancy  of  the 
plaintiff  and  Levine;  entered  into  a  contract  wnth  one  Watkins  in 
the  sum  of  $4,450  for  the  excavation  and  mason  work  required  for 
the  new  structure;  and  executed  a  lease  to  the  F.  "W.  Woolworth 
Company  of  premises  constituting  part  of  the  building  to  be  erected 
and  comprising  a  portion  of  the  location  described  in  the  present 


SECT.    IV]  PEOPLES   EXPRESS    CO.    V.    QUINN  395 

lease  of  the  plaintiff.  They  advertised  the  old  houses  for  sale  and 
sold  them  for  $25  each.  Watkins,  under  his  contract,  began  exca- 
vating in  the  rear  of  the  leased  building  and  tearing  down  the 
adjoining  one,  when  the  plaintiff  forbade  the  defendants  from 
entering  upon  the  leased  premises  and  brought  this  suit.  No  objec- 
tion was  made  by  Levine.  He  stood  by  his  oral  agreement,  although 
according  to  his  testimony,  McCarthy  urged  him  to  repudiate 
it  as  not  being  binding  because  not  in  writing. 

A  decree  was  entered  dismissing  the  plaintiff's  bill.  It  is  argued 
by  the  defendants,  besides  other  matters,  that  the  decree  was 
warranted  on  the  ground  that  there  was  a  surrender  of  the  plain- 
tiff's estate  in  the  premises  by  operation  of  law  within  the  moaning 
of  R.  L.  c.  127,  §  3.  The  trial  judge  did  not  make  a  finding  that 
there  was  a  surrender,  and  we  are  not  prepared  to  say  that  the 
facts  establish  one.  Even  if  we  assume  that  the  acts  of  the  defend- 
ants were  equivalent  to  taking  possession  of  the  leased  premises, 
it  does  not  appear  that  the  plaintiff  had  abandoned  its  possession. 
Amorij  v.  Kannojfsl-ij,  117  Mass.  351.  Talbot  v.  Whipple,  14 
Allen,'  177.1 

But  the  judge  was  Avell  warranted  in  denying  an  injunction  to  the 
plaintiff  in  the  circumstances  here  disclosed.  McCarthy,  who  was 
its  treasurer,  manager,  and  owner  of  substantially  all  its  capital 
stock,  and  who,  the  judge  found,  was  duly  authorized  to  act  in  its 
behalf,  made  a  fair  agreement  with  the  defendants  which  he  now 
repudiates,  apparently  because  it  was  not  in  writing.  There  was 
evidence  that  when  it  was  proposed  to  embody  in  writing  the  agree- 
ment between  the  plaintiff  and  Levine,  McCarthy  said  "  There  is 
no  need  of  signing  this  paper,  because  I  will  see  my  lawyer  and 
get  him  to  fix  up  a  paper  for  Sam  to  sign,  and  then  there  wont  be 
any  chance  for  any  law  suit  between  Sam  and  I;"  that  he  said 
nothing  about  any  paper  between  his  company  and  the  defendants; 
and  that  he  told  them  it  was  all  right,  and  they  might  go  ahead  and 
make  their  contracts  to  erect  the  building.  In  reliance  on  his  oral 
agreement   and   assurances   the  defendants  in  good  faith  proceeded 

1  In  the  following  cases  abandonmont  of  the  premises  by  the  tenant  and 
re-entry  thereon  by  the  landlord  were  held  under  the  circumstances  to 
create  a  surrender.  Sluihan  v.  Herzherg,  73  Ala.  59;  Armour  Co.  v.  Des 
Mnincf!  Co.,  116  Iowa  725;  Wil}iam.s  v.  Jones,  1  Bush.  (Ky.)  621;  McCann 
V.  Bns.^,  117  Me.  548;  Lamar  v.  McNamce,  10  Gill  &  J.  (Md.)  116;  Talbot  v. 
Whipple,  14  All.  (Mass.)  177;  Elliott  v.  Aiken.  45  N.  H.  30;  ^filler  v.  Dcn- 
7?i.9,  68  N.  J.  L.  320;  Hargrove  v.  Bourne,  47  Okla.  484;  Hart  v.  Pratt,  19 
Wash.  .560;  Kneeland  v.  Schmidt,  78  Wis.  345;  Boi/d  v.  Gore,  143  Wis.  531. 
See  Okie  v.  Peraon.  23  App.  D.  C.  170.  183;  Smith  v.  PendergaM.  26  Minn. 
318;  Frankel  v.  Steman,  92  Ohio  St.  197;  4  A.  L.  R.  672  note. 

But  re-entri'  by  the  lan<liord  merely  to  care  for  the  property  or  to 
repair  it  is  insufficient.  See  Bank.'^  v.  Berliner.  113  Atl.  (X.  J.)  321;  Ifaynes 
V.  Aldrich,  133  N.  Y.  287;  Boieen  v.  Clarke.  22  Oreg.  566;  Breuckmann  v. 
Tv>ihiU.  89  Pa.  58;  Milling  v.  Becker,  96  Pa.  182;  Smith  v.  Hunt.  32  R.  I. 
326;  Chandler  v.  Hinds,  135  Wis.  43. 


396  THOMAS    V.    COOK  [CHAP.   VI 

with  their  plans.  As  the  trial  jutlgc  found,  "  if  prevented  from 
tearing  down  the  old  building  described  in  the  lease  to  the  plaintiff, 
and  constructing  a  new  building  on  said  premises,  they  would  be 
subject  to  serious  expense,  and  possibly  to  considerable  litigation." 
There  is  some  evidence  from  which  it  might  be  inferred  that,  while 
giving  the  defendants  the  impression  that  he  would  make  no  trouble 
for  them,  McCarthy  intentionally  refrained  from  putting  the  agree- 
ment into  writing  with  a  purpose  to  take  advantage  of  that  fact 
later.  The  judge  well  may  have  concluded  that  the  plaintiif  had 
estopped  itself  from  setting  lap  as  a  basis  for  equitable  relief,  the 
fact  that  its  agreement  was  not  in  writing.  As  was  said  in  Davis 
V.  Downer,  210  Mass.  573,  576,  "  Where  a  person  has  been  induced 
to  make  expenditures  upon  land,  to  construct  improvements  thereon 
or  to  change  his  situation  materially  in  reliance  upon  the  perform- 
ance of  the  oral  agreement  and  in  expectation  of  the  rights  to  be 
acquired  thereby,  refusal  to  carry  out  the  agreement  is  not  merely 
deprivation  of  the  rights  it  was  intended  to  confer,  which  alone  is 
within  the  statute  of  frauds,  but  is  in  addition  '  an  infliction  of  an 
unjust  and  unconscientious  injury  and  loss.  In  such  case,  the 
party  is  held,  by  force  of  his  acts  or  silent  acquiescence,  which  have 
misled  the  other  to  his  harm,  to  be  estopped  from  setting  up  the 
statute  of  frauds.'  "  Williams  v.  Carthy,  205  Mass.  396.  Banaghan 
V.  Malaney,  200  Mass.  46.  Fenner  v.  Blake,  [1900]  1  Q.  B.  426. 
And  presumably  the  trial  judge  took  into  consideration  the  addi- 
tional fact  that  the  granting  of  an  injunction  would  operate  in- 
equitably to  the  defendants  and  subject  them  to  a  loss  out  of  all 
proportion  to  the  actual  injury,  if  any,  suffered  by  the  plaintiff. 
Levi  V.  Worcester  Consolidated  Street  Railway,  193  Mass.  116. 

Decree  affirmed,  with  costs. 


THOMAS  V.  COOK 
2  B.  &  Aid.  119.    1818. 

Action  for  use  and  occupation.  At  the  trial  of  this  cause  at  the 
London  sittings  after  Trinity  Term  before  Ahhott,  J.,  it  appeared 
that  the  plaintiff  had  originally  let  the  premises,  consisting  of  a 
house  in  Long  Lane,  to  the  defendant  as  tenant  from  year  to  year. 
After  he  had  resided  there  for  some  time,  the  defendant  underlet 
them  to  one  Perkes,  commencing  at  Christmas  1816.  At  Lady-day 
1817,  defendant  distrained  Perkes's  goods  for  rent  in  arrear.  Pent 
being  then  due  from  the  defendant  to  Thomas,  the  latter  gave  notice 
to  Perkes  not  to  pay  the  rent  to  the  defendant,  but  to  him;  and 
upon  Cook's  refusing  to  take  Perkes's  bill  for  the  amount  then  due, 
the  plaintiff  agreed  to  take  it  himself  in  payment  of  the  rent  due 
from  Cook  to  him,  saying  that  he  would  not  have  anything  further 


SECT.   IV]  THOMAS    V.    COOK  397 

to  do  witli  Cook.  And  afterwards,  in  October  1817,  the  plaintiff 
himself  distrained  the  goods  of  Perkes  for  rent  in  arrear.  The  jury 
found,  by  the  direction  of  the  learned  judge,  a  verdict  for  the  de- 
fendant, on  the  ground  that  Thomas  had,  with  the  assent  of  Cook, 
accepted  Perkes  as  his  tenant  of  the  premises.     And  now 

Topping  moved  for  a  new  trial. 

Abbott,  C.  J,  By  the  third  section  of  the  Statute  of  Frauds,  it  is 
enacted  "  that  no  leases,  estates,  or  interests,  either  of  freehold,  terms 
of  years,  or  any  other  uncertain  interest  in  any  messuages,  manors, 
lands,  tenements,  or  hereditaments  shall  be  surrendered,  unless  by 
deed  or  note  in  writing  or  by  act  and  operation  of  law."  And  the 
question  in  this  case  is,  whether  what  has  been  done  will  amount 
to  a  surrender  by  act  and  operation  of  law.  I^ow  the  facts  of 
the  case  are  these.  The  plaintiff  Thomas  had  let  the  premises  in 
question  to  the  defendant  as  tenant  from  year  to  year,  and  the  de- 
fendant underlet  them  to  Perkes.  The  rent  being  in  arrear,  the  de- 
fendant, on  Lady-day  1817,  distrained  the  goods  of  Perkes,  who 
having  tendered  a  bill  in  payment  of  the  rent  which  the  defendant 
had  refused  to  receive,  the  plaintiff  then  interposed,  took  the  bill 
in  payment,  and  accepted  Perkes  as  his  tenant :  and  afterwards  in 
October  1817,  himself  distrained  the  goods  of  Perkes  for  rent  then 
in  arrear.  I  left  it  to  the  jury  to  say  whether  under  these  circum- 
stances the  plaintiff  had  not,  with  the  assent  of  Cook,  accepted 
Perkes  as  his  tenant  of  the  premises,  and  the  jury  found  that  fact 
in  the  affirmative.  I  think,  therefore,  this  amounted  to  a  valid  sur- 
render of  Cook's  interest  in  the  premises,  being  a  surrender  by  act 
and  operation  of  law.  The  consequence  is  that  the  plaintiff  can 
have  no  claim  for  rent  against  the  present  defendant,  and  that  the 
verdict  therefore  was  right. 

Bayley,  J.  If  a  lessee  assigns  over  his  interest,  and  the  lessor 
accepts  the  assignee  as  his  tenant,  the  privity  of  estate  is  tliereby 
destroyed,  and  on  that  ground  it  is  not  competent  for  the  lessor  to 
bring  debt  against  the  lessee.  Where,  indeed,  the  contract  is  by  deed, 
there  he  may  bring  covenant  by  the  Statute  o:^  H.  8.  In  this  case, 
the  landlord  has  accepted  Perkes  as  his  tenant,  and  must  be  con- 
sidered to  have  made  his  election  between  Perkes  and  Cook.  And 
the  case  of  Phipps  v.  Smith orpe,  1  Barn.  <Sr  Aid.  50,  is  an  authority 
to  show  that  the  plaintiff  has  no  right  to  recover.  This  was  a  sur- 
render of  Cook's  interest  in  the  premises  by  act  and  operation  of  law, 
and  the  jury  were  quite  riglit  in  ])resuming  that  Cook  had  assented 
to  the  acceptance  of  Perkes  as  tenant  to  the  plaintiff;  for  that 
assent  was  clearly  Cook's  benefit. 

IIoT.nROYD,  J.  It  ap])enrs  from  the  Statute  of  Frauds  that  a  sur- 
render, in  order  to  be  valid,  must  be  eitlicr  l)y  deed  or  note  in  Avrit- 
ing,  or  by  act  and  operation  of  law.  In  Mollrll  v.  Brai/nc  2  Campb. 
103,  there  was  only  a  parol  surrender,  and  no  circumstance  existed 
in  that  case  which  could  constitute  a  surrender  by  act  and  operation 


398  AUER    V.    PENN  [CHAP.   VI 

of  law.  But  in  this  case,  there  is  not  merely  a  declaration  by  the 
plaintiff,  that  he  will  no  longer  consider  Cook  as  his  tenant,  but 
there  is  also  the  acceptance  by  him  of  another  person  as  the  tenant, 
and  that  acceptance  is  assented  to  by  Cook.  Now,  if  a  lease  be 
granted  to  an  individual,  and  there  be  a  subsequent  demise  of  the 
premises  by  parol  to  the  same  person,  that  will  amount  to  a  surren- 
der of  his  lease.  Then  the  circumstance  of  Cook  having  first  put  in 
another  person  as  undertenant,  &.nd  having  afterwards  assented  to  a 
second  demise  by  the  plaintiff  to  that  person,  will  in  the  present 
case  amount  to  a  virtual  surrender  of  his  interest  by  act  and  opera- 
tion of  law.  Notwithstanding  therefore  the  third  section  of  the 
Statute  of  Frauds,  I  am  of  opinion,  that  the  facts  here  found 
by  the  jury  amount  to  a  valid  surrender  of  Cook's  interest,  and  a 
re-demise  of  the  premises  by  the  plaintiff  to  Perkes.  In  that  case 
there  will  be  no  ground  for  disturbing  the  present  verdict. 

Rule  refused.^ 


AUEK  V.  PENN 
99  Pa.  370.    1882. 


January  17th,  1882.  Before  Shaeswood,  C.  J.,  Mercur,  Gordon, 
Paxson,  Trunkey  and  Sterrett,  JJ.     Green,  J.,  absent. 

Error  to  the  Court  of  Common  Pleas,  No.  1,  of  Philadelphia 
County,  of  July  Term,  1881,  No.  18. 

Covenant,  by  Joseph  Penn  against  John  Auer,  upon  a  contract  of 
suretyship  annexed  to  a  lease.  Upon  a  former  writ  of  error,  a 
judgment  entered  for  plaintiff  for  want  of  a  sufficient  affidavit  of 
defence  was  reversed,  and  a  procedendo  awarded:  see  11  Norris,  444. 

On  the  trial,  before  Biddh,  J.,  the  following  facts  appeared :  On 
October  15th,  1875,  the  plaintiff  leased  a  certain  house  to  one  Jacob 
Brown,  for  the  term  of  five  years,  at  the  yearly  rent  of  $360,  payable 
in  equal  monthly  payments  of  $30  each.  The  lease  contained  the 
usual  covenants  on  the  part  of  the  lessee  to  pay  the  rent  as  due,  &c. 
At  the  foot  of  the  lease  was  the  agreement  of  suretyship,  signed  and 
sealed  by  the  defendant,  John  Auer,  whereby  he  covenanted  that  the 
lessee  should  faithfully  perform  all  the  covenants  in  the  lease  on  his 
part  to  be  performed,  otherwise  immediate  recourse  may  be  had 
against  the  surety  without  any  prior  proceedings  against  the  lessee. 

The  lessee  entered,  paid  his  rent  regularly  to  January,  1877,  and 
moved  out,  without  notice  to  his  landlord,  on  !Feb.ruary  13th,  1877, 
because,  as  he  alleged,  of  defective  drainage :  after  removal  he  took 
the  keys  to  the  landlord's  agent,  J.  McGeogh.  McGeogh  testified 
that  he  declined  to  receive  them,  and  stated  that  he  would  hold  his 

1  See  Amory  v.  Kannojjsky,  117  Mass.  351;  Snyder  v.  Parker,  75  Mo. 
App.  529;  Lynch  v.  Lynch,  6  Ir.  L.  R.  131. 


SECT.   IV]  AUER    V.    PENN  399 

surety  for  the  rent,  wliereupon  Brown  threw  them  on  the  floor  and 
went  out.  Brown  testified  that  McGeogh  took  the  keys,  saying  it 
was  all  right,  but  he  admitted  that  McGeogh  said  he  would  hold 
John  Auer,  the  surety,  for  the  rent. 

McGeogh  sent  to  Auer  the  following  letters  on  the  days  of  their 
date. 

Philadelphia,  February  17th,  1877. 
Office  2228  North  Fifth  Street. 

John  Auer,  Esq.  Dear  Sir:  The  rent  of  No.  1836  Germantown 
Avenue  was  due  on  the  15th  instant,  and  I  would  like  you  would 
call  up  and  pay  it.  Brown,  the  tenant  for  whom  you  are  security, 
having  removed,  of  course  we  will  have  to  hold  you  for  the  rent. 

Yours,  respectfully, 

J.  McGeogh. 

February  21st,  1877. 
John  Auer,  Esq.  Dear  Sir :  The  tenant  of  1836  Germantown 
Avenue  having  removed,  and  as  under  the  lease  you  are  security,  I 
shall  look  to  you  for  the  payment  of  the  rent.  If  you  desire  it,  I 
shall  place  a  bill  on  the  house  and  rent  it  for  you;  but  in  no  case 
will  Ave  release  you  until  the  expiration  of  the  lease.  You  will  take 
notice  that  unless  I  hear  from  you  in  this  matter  within  a  few  days, 
I  shall  proceed  to  rent  the  house  at  your  risk,  holding  you,  of  course, 
for  the  rent  until  the  expiration  of  the  lease. 

Yours,  respectfully, 

James   McGeogh, 
Agent  for  Jos.  Penn,  2228  North  Fifth  Street. 

February  23d,  187T. 
John  Auer,  Esq.     Dear  Sir:     If  I  do  not  hear  from  you  to-day,  I 
shall   put   a    bill   on    the   property    1836    Germantown    Avenue    to- 
morrow, still  holding  you,  as  before  stated,  for  rent  until  the  ex- 
piration of  the  lease.  Yours,  respectfully, 

J.  McGeogh,  Agent  for  Joseph  Penn. 

Philadelphia,  March  1st,  1877. 
John  Auer,  Esq.  Dear  Sir:  A  party  named  Frederick  Mctzgcr  is 
desirous  of  renting  1836  Germantown  Avenue;  he  is  willing  to  pay 
thirty  dollars  per  month.  If  you  have  any  objection,  please  let  me 
know.  If  I  do  not  hear  from  you  by  to-morrow  morning,  I  will  rent 
it  to  him,  and  still  hold  you  as  security. 

Yours,  respectfully, 
Jas,  McGeogh,  Agent  for  Joseph  Penn, 


400  AUER    V.    PENN  [CHAP.    VI 

Philadelphia,  September  15th,  1877. 
John  Auer,  Esq.  Dear  Sir :  Frederick  Metzger,  present  occupant 
of  1836  Germantown  Avenue,  is  removing.  John  Kiehl,  a  former 
occupant  of  the  place,  desires  to  rent  it.  Unless  I  hear  from  you 
to  the  contrary,  I  shall  rent  it  to  him,  still  holding  you,  of  course, 
for  the  rent  as  security  on  the  lease. 

Yours,   respectfully, 

James   McGeogh, 
Agent  for  Joseph  Penn,  2228  North  Fifth  Street. 

January  2d,  1878. 
John  Auer,  Esq.  Dear  Sir:  Store  1836  Germantown  Avenue 
is  again  vacant;  there  is  a  party  named  Sylvester  Krieder  v^^ho 
wishes  to  rent  it  as  a  barber-shop.  If  you  have  no  objections  I  will 
rent  it  to  him,  still  holding  you,  of  course,  as  security  under  the 
lease.  _  Yours,  respectfully, 

J.  McGeogh, 
Agent  for  Joseph  Penn,  No.  2228  North  Fifth  Street. 

January  21st,  1878. 
John  Auer,  Esq.    Dear  Sir:    Premises  1836  Germantown  Avenue 
being  idle,  I  shall  put  a  bill  on  the  same,  to  rent,  unless  I  hear  from 
you  to  the  contrary,  holding  you,  of  course,  as  security  under  the 
lease.  Yours,  respectfully, 

J.  McGeogh,  2228  North  Fifth  Street. 

May  13th,  1878. 
John  Auer,  Esq.  Dear  Sir :  There  is  a  party  named  William 
Piersons,  who  desires  to  rent  the  house  1836  Germantown  Avenue, 
for  a  saloon.  I  cannot  get  any  more  than  $25.  If  I  do  not  hear  from 
you  by  to-morrow  morning  I  shall  rent  it,  holding  you,  of  course, 
under  the  lease  as  security.  Yours,  respectfully, 

J.  McGeogh,  2228  North  Fifth  Street. 

No  answers  were  received  to  these  communications.  McGeogh 
rented  the  premises  to  various  tenants  from  time  to  time,  credited 
the  lessee  with  the  rents  received  from  them,  leaving  a  balance  due, 
at  the  expiration  of  the  term,  of  $355,  for  which  this  suit  was 
brought. 

The  defendant  presented  the  following  points :  — 
1.  "  That  if  the  jury  find  that  the  premises  leased  were  unhealthy 
and  untenantable  by  reason  of  impure  air,  arising  from  defective 
drainage,  which  existed  when  the  lease  was  made;  that  this  fact  was 
known  to  the  plaintiff,  and  he  refused  to  remedy  the  defect,  and  that 
the  tenant  removed  in  consequence  thereof,  the  plaintiff  cannot  re- 
cover in  this  suit.  The  tenant  is  not  bound  to  repair  defects  existing 
when  he  leases  the  premises," 


SECT.    IV]  AUER    V.    PENN  401 

Answer.  "  I  was  going  to  say  that  that  is  a  proposition  of  law, 
which  it  does  not  seem  to  me  necessary  to  answer,  in  one  way  or 
another,  here,  becanse  there  is  no  testimony  to  that  effect;  on  the 
contrary,  the  testimony  on  both  sides  has  been  that  the  house  was 
perfectly  satisfactory  at  the  time  it  was  leased,  that  Mr.  Brown 
lived  in  it  about  a  year  afterwards.  I  do  not  think  the  state  of 
facts  arises  here  which  makes  it  necessary  for  me  to  answer  the 
point." 

2.  "  If  the  landlord  took  possession  of  the  premises,  and  used  or 
occupied  the  same,  either  personally  or  by  a  second  tenant,  he  will 
be  estopped  from  collecting  the  rent  for  the  same  period  of  the 
former  tenant,  unless  otherwise  agreed  between  them." 

Answer.  "  The  phraseology  there  is  a  little  ambiguous.  '  If  the 
landlord  took  possession  of  the  premises.'  If  that  means  that  if  the 
landlord  accepted  the  surrender  of  the  premises  and  agreed  to  re- 
lease the  tenant,  the  proposition  is  true;  but  the  mere  fact,  as  I 
have  said  to  you,  of  the  landlord's  taking  possession  of  the  premises 
and  renting  them,  after  the  other  party  had  refused  to  remain  upon 
them,  does  not  produce  the  effect  that  is  here  asked  for.  If  that  is 
the  meaning  of  the  point,  I  refuse  to  affirm  it." 

The  learned  judge  charged  the  jury,  inter  alia,  as  follows :  "  The 
rule  of  law  is  perfectly  well  settled  in  this  State,  that  a  landlord  is 
not  liable  for  repairs  unless  there  is  a  special  stipulation  to  that  effect 
in  the  lease.  Any  man  has  a  right  to  take  the  premises  of  any  other 
man  if  he  pleases,  making  any  covenant  or  agreement  with  the 
landlord  that  he  pleases,  but  it  is  settled  that  he  cannot  withhold 
the  payment  of  the  rent  on  account  of  the  bad  condition  of  the 
premises. 

"  The  second  point  that  he  makes  is,  that  he  surrendered  posses- 
sion of  these  premises.  A  contract  to  lease  a  house,  or  a  contract  to 
take  a  house,  is  like  any  other  agreement.  After  you  have  made  it, 
one  party  has  no  right  to  put  an  end  to  it.  No  man,  after  you  have 
made  an  agreement  or  contract  with  him,  can  come  to  you  and  say, 
*  I  will  give  up  this  contract.'  Unless  both  parties  assent  to  the 
giving  up  of  the  contract,  the  contract  cannot  be  broken  in  that 
way.  Undoubtedly,  if  the  landlord  and  tenant  come  together,  and 
a  landlord  agrees  to  accept  a  surrender  of  the  premises,  that  would 
end  the  lease  and  responsibility  of  the  tenant;  but  a  tenant  has  no 
right  to  go  into  a  landlord's  office  and  say,  '  I  have  done  with  the 
house,'  and  throw  the  key  on  the  floor  of  the  landlord's  office.  Tlie 
landlord  is  not  bound  to  let  the  key  remain  on  the  floor;  he  has  a 
perfect  right  to  hang  it  upon  a  nail  without  it  being  evidence  that 
he  accepts  the  surrender.  ...  On  the  contrary,  he  says,  '  I  will 
hold  your  surety  responsible.'  It  does  not  constitute  a  surrender  or 
an  acceptance  by  the  landlord  that  he  takes  possession  of  the  prop- 
erty and  looks  after  it,  and  rents  it,  because  that  is  for  the  benefit 
of  both  parties. 


402  AUER    V.    PENN  [CHAP.   VI 

"  [If  a  man  refuse  to  continue  your  tenant,  gives  up  the  house 
into  your  hands,  why  then  you  have  a  right  to  put  a  bill  upon  the 
house,  and  try  to  rent  it,  because  if  you  rent  it,  it  is  so  much  saved 
to  Mr.  Auer,  so  much  saved  to  the  surety,  or  the  tenant,  because  you 
have  to  give  an  account  of  every  cent  you  make  out  of  the  house, 
and  certainly  it  is  much  better  for  the  tenant  that  the  landlord 
should  rent  the  house  and  get  something  for  it  than  to  simply  lock 
the  door,  and  lay  by  and  sue  the  tenant  or  the  surety  for  the  whole 
amount  of  the  rent  for  the  whole  term  for  which  he  has  taken  it, 
so  that,  being  for  the  benefit  of  both  parties,  it  is  no  presumption 
that  the  landlord  has  accepted  a  surrender  that  he  has  taken  and 
leased  the  house,] 

"  [In  regard  to  the  leasing  in  the  name  of  Mr.  Penn,  I  see  no 
pertinence  in  that,  one  way  or  the  other.  I  do  not  see  what  right 
he  would  have  to  use  Mr.  Auer's  name  as  landlord  any  more  than  he 
had  to  use  the  name  of  any  one  of  us,  and  rent  any  property  for  us. 
He  did  the  best,  —  he  was  bound  to  do  the  best  he  could  for  the 
property  —  it  was  quite  immaterial  under  whose  name  he  rented 
it.]  " 

Verdict  and  judgment  for  the  plaintiff,  for  the  amount  claimed. 
The  defendant  took  this  writ  of  error,  assigning  for  error  the 
answers  of  the  court  to  his  points,  and  the  portion  of  the  charge 
quoted  in  brackets. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court,  February 
13th,  1882. 

Nothing  is  better  settled  in  Pennsylvania  than  that  a  tenant  for 
years  cannot  relieve  himself  from  his  liability  under  his  covenant  to 
pay  rent  by  vacating  the  demised  premises  during  the  term,  and 
sending  the  key  to  his  landlord.  The  reason  for  it  is  that  in  the 
absence  of  fraud,  one  party  to  a  contract  cannot  rescind  it  at 
pleasure.  And  the  landlord  may  accept  the  keys,  take  possession, 
put  a  bill  on  the  house  for  rent,  and  at  the  same  time  apprise  his 
tenant  that  he  still  holds  him  liable  for  the  rent.  All  this,  as  was 
said  by  Mr.  Justice  Rogers  in  Marseilles  v.  Kerr,  6  Wharton,  500, 
is  for  the  benefit  of  the  tenant,  and  is  not  intended,  nor  can  it  have 
the  effect,  to  put  an  end  to  the  contract  and  discharp-e  him  from 
rent.  A  surrender,  a  release,  or  an  eviction  will  unr) oubtedlv  re- 
lieve a  tenant,  and  it  was  said  by  Chief  Justice  Gibson,  in  Fisher 
V.  MiUihen,  8  Barr,  111,  that  nothing  less  would  do  so.  This  re- 
mark, however,  was  without  the  authority  of  the  court,  and  must 
be  regarded  as  didum.  The  case  in  hand  does  not  require  us  to 
assert  so  broad  a  proposition.  There  was  neither  a  release  nor  an 
eviction  here,  but  the  surety  claimed  to  be  discharged  because  after 
the  tenant,  who  was  his  principal,  sent  the  keys  to  the  landlord,  the 
latter  leased  the  property  to  another  tenant.  Yet  there  is  no  pretence 
that  the  landlord  accepted  a  surrender;  on  the  contrary,  the  proof 
is  clear  that  he  declined  to  do  so,  and  notified  the  defendant  below 


SECT.    IV]  AUER    V.    PENN  403 

that  he  would  hold  him  for  the  rent.  This  notice  was  repeated  on 
more  than  one  occasion  when  he  was  ahout  to  lease  the  property  to 
another  tenant.  Yet  it  was  urged  by  the  defendant  below  that  such 
subsequent  leasing  by  the  landlord,  and  the  acceptance  of  rent  from 
the  tenant,  raised  a  presumption  of  a  surrender.  A  surrender  of 
demised  premises  by  the  tenant  during  the  term,  to  be  effectual, 
must  be  accepted  by  the  lessor.  The  burden  of  proof  is  upon  the 
tenant  to  show  such  acceptance.  He  sets  it  up  to  relieve  himself 
from  his  covenant,  and  must  prove  it.  When,  therefore,  the  lessor 
retains  the  keys,  and  at  the  same  time  notifies  the  lessee  that  he 
will  hold  him  for  the  rent,  there  is  no  room  for  the  presumption  of 
a  surrender.  Nor  does  the  renting  of  the  premises  to  another  tenant 
under  such  circumstances  raise  such  presumption,  for  the  reason 
that  it  is  manifestly  to  the  lessee's  interest  that  they  should  be  occu- 
pied. The  landlord  may  allow  the  property  to  stand  idle,  and  hold 
the  tenant  for  the  entire  rent;  or  he  may  lease  it  and  hold  him  for 
the  difference,  if  any.  It  was  said  in  Breuclcmann  v.  TiuibiU,  8 
Norris,  58,  that  "  taking  possession,  repairing,  advertising  the  house 
to  rent,  are  all  acts  in  the  interest  and  for  the  benefit  of  the  tenant, 
and  do  not  discharge  him  from  his  covenant  to  pay  rent."  Much 
more  is  it  to  the  interest  of  the  tenant  for  the  landlord  to  rent  the 
premises.  Tf  at  the  same  rent,  the  tenant  is  entirely  relieved;  if  at 
less,  he  is  liable  only  for  the  difference. 

Upon  the  trial  in  the  court  below,  the  learned  judge  instructed 
the  jury,  as  set  forth  in  the  second  assignment  of  error,  as  follows : 
"  If  a  man  refuses  to  continue  your  tenant,  gives  up  the  house  into 
your  hands,  why,  then,  you  have  a  right  to  put  a  bill  upon  the  house 
and  try  to  rent  it ;  because,  if  you  rent  it,  it  is  so  much  saved  to  Mr. 
Auer,  so  much  saved  to  the  surety  of  the  tenant,  because  you  have 
to  give  an  account  of  every  cent  you  make  out  of  the  house;  and 
certainly  it  is  much  better  for  the  tenant,  that  the  landlord  should 
rent  the  house  and  get  something  for  it,  than  to  simply  lock  the 
door  and  lay  by  and  sue  the  tenant  or  surety  for  the  whole  amount 
of  the  rent  for  the  whole  term  for  which  he  has  taken  it;  so  that, 
beinor  for  the^  benefit  of  both  parties,  it  is  no  presumption  that  the 
landlord  has  accepted  a  surrender,  that  he  has  taken  and  leased  the 
house." 

"We  see  no  error  in  this.     It  is  good  sense  as  Avell  as  good  law. 

We  are  not  aware  of  any  authorities  in  this  State  which  are  in 
conflict  with  the  foregoing  views.  Those  cited  on  lichalf  of  the  dc- 
fendnnt  below  certainly  are  not. 

The  remaining  assignments  do  not  require  discussion.  The  fifth 
does  not  fully  state  the  ruling  of  the  court  Ix'low.  As  it  api)oars  in 
the  bill  of  exceptions  it  is  entirely  correct. 

Judgment  affirmed} 

1  Brown  v.  Cairns,  107  Iowa  727;  Broum  v.  Cairns,  63  Kan.  584;   O/f/e- 


404  GRAY    V.    KAUFMAN    DAIRY    &    ICE   CREAM    CO.       [CHAP.   VI 

GRAY  V.  THE  KAUFMAN  DAIRY  AND  ICE  CREAM  CO. 
162  N.  Y.  388.    1900. 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  May  5,  1897,  affirm- 
ing a  judgment  in  favor  of  plaintiff  entered  upon  a  decision  of  the 
court  at  a  Trial  Term,  a  jury  having  been  waived. 

This  action  was  brought  to  recover  two  months'  rent  of  the  prem- 
ises known  as  No.  787  Eighth  avenue,  in  the  city  of  New  York.  In 
July,  1893,  the  plaintiff  let  the  said  premises  to  the  defendant  for 
ten  years  from  August  1st,  1893,  at  the  yearly  rental  of  $2,400, 
payable  monthly  in  advance,  and  also  the  extra  water  rent  charged 
against  the  defendant  for  its  business.  The  defendant  took  posses- 
sion about  July,  1893,  and  paid  rent  to  November  1st,  1893,  but 
refused  to  pay  for  the  months  of  November  and  December  of  that 
year,  the  rent  of  which  became  due  and  payable  on  the  first  days 
of  those  months  respectively. 

The  answer,  in  effect,  admits  the  making  of  the  lease,  but  denies 
any  indebtedness  under  it  and  sets  up  the  eviction  of  the  defendant, 
a  surrender  and  rescission  of  the  lease,  and  claims  credit  for  the 
rent  received  from  the  undertenant.  On  or  about  the  28th  or  29th 
of  October,  1893,  the  plaintiff  had  a  conversation  with  Mr.  Kauf- 
man, the  president  of  the  defendant,  upon  the  demised  premises. 
The  plaintiff's  version  of  this  conversation  is  as  follows :  "  They 
were  pulling  up  the  store  and  the  things,  and  were  going  to  move 
out.  They  had  not  said  anything  to  me  about  moving  out  prior  to 
that  time.  I  asked  Mr.  Kaufman  what  he  was  doing,  pulling  up  the 
store.  He  said  he  was  going  to  move  out,  and  I  asked  him  why, 
and  he  said  because  he  couldn't  make  any  money,  and  I  told  him 
that  he  had  a  lease  on  it,  and  that  I  would  hold  him  responsible  foi 
the  rent  if  he  went  out.  '  Well,'  he  says,  '  I  am  moving  out,  I  don't 
want  to  stay  where  I  don't  make  my  rent.'  "  The  defendant  moved 
out  and  sent  the  keys  of  the  store  to  the  plaintiff  by  mail.  Plaintiff 
received  them  about  the  2nd  of  November,  1893.  On  the  3d  of 
November,  1893,  plaintiff  served  upon  the  defendant  a  notice  of 
which  the  following  is  a  copy : 


umrtel  v.  Wiesenfcid,  97  Md.  165;  Alsnp  v.  Banks,  68  Miss.  664;  Euckcr  v. 
Mason,  61  Okla.  270,  accord. 

See  In  re  Millings  Clothing  Co.,  238  F.  R.  58;  Hays  v.  Goldman,  71  Ark. 
251;  Marshall  v.  Grosse  Clothing  Co.,  184  111.  421.  424;  C/jase  Co.  v.  Evans, 
178  Iowa  885;  Hickman  v.  Breadjord,  179  lowaf  827;  Stewart  v.  Sprague,  71 
Mich.  50.  55;  Bumillcr  v.  Walker,  95  Ohio  St.  344.  3.55-356;  Hargrove  v. 
Bourne,  47  Okla.  484,  488;  13  L.  R.  A.  n.  s.  398  note.  Compare  Jones  v. 
Rushmore,  67  N.  J.  L.  157;  Whitcomb  v.  Brant,  90  N.  J.  L.  245;  Hall  v. 
Gould,  13  N.  y.  127,  134. 


SECT.    IV]       GRAY    V.    KAUFMAN   DAIRY    &    ICE    CREAM    CO.  405 

"  New  York,  November  3d,  1893. 
"  To  the  Kaufman  Dairy  &  Ice  Cream  Co.: 

"  Yesterday  I  received  the  keys  of  787  Eighth  Avenue  by  mail. 
I  hereby  notify  you  that  I  do  not  accept  a  surrender  of  the  prernises, 
and  that  I  intend  to  hold  you  responsible  for  the  rent  under  the  lease. 
I  shall  let  the  premises  on  your  account,  and  hold  you  for  any  loss 
which  may  be  sustained. 

"  Yours,  etc., 

"John  Gray." 

The  defendant  made  no  answer  to  this  notice.  On  the  17th  of 
November,  1893,  the  plaintiff  went  to  Kingston  and  saw  Mr.  Kauf- 
man, the  president  of  the  defendant,  Mr.  Spore,  the  secretary,  and 
a  Mr.  Bruin.  The  plaintiff  asked  Mr.  Kaufman  for  the  November 
rent,  and  the  latter  replied  that  no  rent  was  due;  that  he  had  not 
made  a  lease ;  and  there  was  nothing  due  and  he  would  not  pay ;  that 
he  had  given  up  the  store  and  plaintiff  could  do  what  he  liked  with 
it.  Thereupon  the  plaintiff  started  for  home.  The  president  and 
secretary  of  the  defendant  went  to  the  railway  station  and  there 
had  a  conversation  with  the  plaintiff  about  compromising  the 
matter  by  taking  the  cellar  of  said  premises  for  fifty  dollars  a 
month  for  the  term  of  the  lease  if  the  plaintiff  would  cancel  the  same 
as  to  the  rest  of  the  premises.  The  plaintiff  said  he  would  think  over 
the  matter  and  see  what  he  could  do  with  the  remainder  of  the 
property,  and  let  them  know.  The  plaintiff  testifies  that  thereafter, 
and  on  the  27th  of  November,.  1893,  he  wrote  to  the  defendant  as 
follows  : 

"  Kaufman  Dairy  &  Ice  Cream  Co.  : 

"  Gentlemen.  —  I  have  an  offer  for  the  store  you  leased  from  me, 
797  Eighth  Ave.  The  parties  will  pay  $1,500  to  the  first  of  May 
and  $1,600  for  three  years  from  May.  I  think  this  is  about  as  good 
an  offer  as  can  be  expected,  considering  the  times.  Please  let  me 
know  if  you  will  keep  the  cellar  and  pay  the  difference  between  the 
$1,.500  and  $2,400  to  May,  and  $1,600  —  $2,400  after.  An  early 
reply  will  much  oblige.  Yours  respect.  J.  Gray, 

"323  Washington  Ave." 

The  plaintiff  further  testifies  that  he  enclosed  this  letter  in  an 
envelope  directed  to  the  defendant  at  Kingston,  N.  Y.,  deposited  it 
prepaid  in  the  post  office  at  Brooklyn  and  received  no  rei)ly  thereto. 
The  defendant  had  tenants  in  the  cellar  when  it  left  the  premises. 
These  tenants  attorned  to  the  plaintiff. 

On  or  about  the  1st  of  December,  1893,  plaintiff  let  the  premises 
which  bad  been  previously  demised  to  the  defendant  to  one  Mary 
Ann    Keoeli    for   the   term    of   three   vears   and   five   months    at    an 


406  GRAY    V.    KAUFMAN   DAIRY    &    ICE    CREAM    CO.       [CHAP.   VI 

annual  rental  of  $1,500  per  year  for  the  first  five  months,  and  $1,600 
per  year  for  the  remaining  three  years,  to  be  paid  in  equal  monthly 
installments  in  advance. 

The  defendant  pleaded  eviction,  but  gave  no  evidence  upon  that 
subject,  and  upon  the  trial  admitted  that  it  had  no  excuse  for  leaving 
the  premises.  Kaufman  admitted  having  a  conversation  with  the 
plaintiff  before  the  defendant  left  the  premises,  in  which  the  plain- 
tiff stated  that  he  would  hold  -the  defendant  for  the  rent,  but  de- 
nied that  he,  Kaufman,  had  stated  that  the  defendant  would  not 
stay  where  it  did  not  make  any  money.  Kaufman  also  admitted 
the  receipt  of  the  letter  dated  November  3d,  but  both  he  and  Spore 
denied  receiving  the  one  dated  November  27th.  Both  admitted  the 
conversation  testified  to  by  the  plaintiff  as  having  taken  place  at 
Kingston,  and  Spore  testified  that  on  that  occasion  Kaufman  stated 
distinctly  that  the  defendant  did  not  owe  any  rent ;  that  it  had  given 
up  and  surrendered  the  premises;  that  there  was  some  talk  at  the 
railroad  station  about  renting  the  cellar  from  the  plaintiff  at  fifty 
dollars  per  month  during  the  term  of  the  lease,  but  there  was 
nothing  said  in  that  conversation  about  plaintiff's  reletting  the 
premises  on  defendant's  account.  Abraham  L.  Gray,  a  son  of  the 
plaintiff,  testified  on  the  latter's  behalf  that  he  went  to  Kingston 
with  his  father  to  see  Kaufman  and  was  present  at  the  conversation 
at  the  railroad  station.  He  testified  that  Mr.  Spore  offered  the 
plaintiff  fifty  dollars  a  month  for  the  basement  if  he  would  let  the 
defendant  off  on  the  store,  and  the  plaintiff  replied  that  he  would 
think  it  over  and  let  them  know.  The  lease  to  the  defendant  con- 
tained no  provision  against  subletting,  except  for  "  any  saloon  or 
liquor  business,"  and  contained  no .  provision  for  a  reletting  of  the 
premises  by  the  plaintiff  in  case  the  defendant  vacated  the  same 
during  the  term  of  the  lease. 

After  the  evidence  was  all  in,  the  parties  waived  the  jury  and 
submitted  the  facts  to  the  court  for  decision.  The  defendant  admitted 
its  liability  for  the  November  rent,  but  claimed  that  it  was  released 
as  to  the  December  rent  by  the  reletting  of  the  premises  to  said 
Mary  Ann  Keogh  on  the  1st  of  December.  Upon  these  facts  the 
court  found  that  the  plaintiff  was  entitled  to  recover  rent  for  the 
months  of  November  and  December,  less  the  amount  received  from 
the  undertenants;  that  the  plaintiff  refused  to  accept  a  surrender  of 
the  premises;  that  the  premises  were  at  no  time  surrendered  to  the 
plaintiff,  and  that  the  reletting  of  the  premises  was  done  with  the 
assent  of  the  defendant. 

Werner,  J.  This  controversy  arises  out  of  the  conventional  re- 
lation of  landlord  and  tenant  under  circumstances  governed  by  fixed 
principles  of  law.  The  first  and  most  important  question  in  the  case 
is  whether  the  plaintiff's  reletting  of  the  premises  described  in  the 
lease,  after  the  defendant's  attempted  surrender  of  the  same,  changed 
or  affected  the  legal  status  of  the  parties  under  the  original  lease. 


SECT.    IV]       GRAY    V.    KAUFMAN    DAIRY    &    ICE    CREAM    CO.  407 

It  is  SO  well  settled  as  to  be  almost  axiomatic  that  a  surrender  of 
premises  is  created  by  operation  of  law  when  the  parties  to  a  lease 
do  some  act  so  inconsistent  with  the  subsisting  relation  of  landlord 
and  tenant  as  to  imply  that  they  have  both  agreed  to  consider  the 
surrender  as  made.  It  has  been  held  in  this  state  that  "  a  surrender 
is  implied,  and  so  effected  by  operation  of  law  within  the  statute, 
when  another  estate  is  created  by  the  reversioner  or  remainderman 
with  the  assent  of  the  termor  incompatible  with  the  existing  state 
or  term."  Coe  v.  Hobby,  72  I^.  Y.  145.  The  existence  of  this  rule 
has  been  recognized  in  this  state  in  Bedford  v.  Terhune,  30  N.  Y. 
463,  Smith  v.  Kerr,  108  N.  Y.  36,  Underhill  v.  Collins,  132  N.  Y. 
271,  and  in  other  jurisdictions  in  Beall  v.  White,  94  TJ.  S.  389, 
Amory  v.  Kannoifshy,  117  Mass.  351,  Thomas  v.  Cooh,  2  Barn.  & 
Aid.  119,  Nickells  v.  Atherstone,  10  Ad.  &  El.  N.  K.  944,  Lyon  v. 
Reed,  13  M.  &  W.  306,  and  Washburn  on  Real  Property,  Vol.  I., 
pp.  477,  478.  It  is  conceded  that  defendant's  offer  of  surrender  was 
declined  by  the  plaintiff,  and  that  after  the  defendant's  abandonment 
of  the  premises  the  plaintiff  relet  the  same  in  his  own  name  to  one 
Mary  Ann  Keogh  for  a  term  of  three  years  and  five  months.  Such 
a  situation,  unqualified  by  other  conditions,  would  create  a  surrender 
by  operation  of  law.  We  must,  therefore,  ascertain  whether  the 
conduct  of  the  parties  takes  this  case  out  of  the  operation  of  this 
rule. 

It  is  urged  by  the  learned  counsel  for  the  plaintiff  that  the  re- 
letting was  done  with  the  consent  of  the  defendant  under  circum- 
stances which  bring  the  case  directly  within  the  rule  laid  down  by 
Judfire  Haight  in  Underhill  v.  Collins,  132  IST.  Y.  270.  In  that  case 
the  landlord  and  tenant  had  a  conversation  a  few  days  before  the 
latter  vacated  the  premises.  The  tenant  asked  the  landlord  to  take 
the  same  off  his  hands.  This  the  landlord  declined  to  do,  insisting 
that  he  would  hold  the  tenant  for  the  rent  and  would  lease  the  prem- 
ises for  his  benefit.  In  the  case  at  bar  there  was  also  a  conversation 
before  the  premisos  were  vacated;  but  in  this  conversation  there 
was  nothing  said  about  a  reletting.  The  plaintiff  simjily  said  that 
he  would  hold  the  defendant  for  the  rent.  On  the  2d  of  November, 
1893,  a  day  or  two  after  defendant's  removal,  the  plaintiff  received 
the  keys  of  the  premises.  He  returned  them  with  a  note  stating 
that  he  would  relet  on  defendant's  account  and  hold  it  responsible 
for  any  loss  that  may  be  sustained.  To  this  note  the  defendant 
made  no  reply.  On  the  17th  of  T^ovember,  1S93,  the  plaintiff  and 
his  son  went  to  Kins;ston  and  saw  Kaufman  and  Spore.  In  the  con- 
versation which  took  ])lnce  between  tliem  and  tlie  plaintiff  there  Avas 
no  suggestion  of  reletting.  The  plaintiff  made  a  demand  for  the 
rent  which  was  unpaid,  and  the  defendant  made  an  offer  of  compro- 
mise, under  which  it  agreed  to  take  the  cellar  of  said  premises  at 
fifty  dollars  per  month  if  the  ])laintiff  would  cancel  the  lease  as  to  the 
store.     This  offer  the  plaintiff  agreed  to  consider.     On  the  27th  of 


408  GRAY    V.    KAUFMAN   DAIRY    &    ICE    CREAM    CO.       [CHAP.   VI 

November,  1893,  the  plaintiff  wrote  to  the  defendant  that  he  had 
an  offer  for  the  store  of  $1,500  per  year  to  the  first  of  the  next  ensu- 
ing May,  and  $1,600  per  year  for  three  years  thereafter.  He  re- 
quested the  defendant  to  let  him  know  if  it  would  keep  the  cellar 
and  pay  the  difference  between  the  rent  fixed  by  the  lease  and  the 
amount  offered  by  the  intending  tenant.  To  this  letter  the  defend- 
ant made  no  reply.  It  will  be  observed  from  this  brief  resume  of 
the  facts  that  there  are  several  distinct  features  in  which  this  case 
differs  from  the  Underbill  case.  In  the  latter  case  there  was  a  per- 
sonal interview  before  the  tenant  had  vacated,  in  which  the  subject 
of  reletting  the  premises  was  discussed.  Here  the  subject  of  reletting 
was  not  mentioned  until  after  the  tenant  went  out,  and  then  the 
suggestion  came  in  a  letter  to  which  the  defendant  made  no  reply. 
Obviously  the  only  theory  upon  which  defendant  can  be  held  to 
have  assented  to  the  reletting  of  the  premises  is  that  by  its  silence 
it  acquiesced  in  the  act  of  the  plaintiff.  We  may  assume,  although 
we  do  not  decide,  that  if  the  communications  upon  the  subject  of  re- 
letting had  been  made  verbally  in  the  course  of  conversation  between 
the  parties,  even  after  the  tenant  had  vacated  the  premises,  the  rule 
as  to  agreements  by  implication  laid  down  in  the  Underhill  case 
might  be  held  to  apply.  But  here,  as  we  have  seen,  the  landlord's 
proposal  to  relet  was  in  the  form  of  two  letters.  In  the  first  of  these, 
dated  November  3d,  he  makes  the  unequivocal  assertion  that  he 
will  let  the  premises  on  defendant's  account,  and  will  hold  it  for 
any  loss  that  may  be  sustained.  Defendant's  failure  to  reply  to 
this  letter  is  followed  by  a  personal  interview  on  the  17th  of  Novem- 
ber, in  which  there  is  no  reference  to  a  reletting  of  the  premises, 
and  in  which  defendant's  president,  after  denying  any  liability 
for  rent,  tells  the  plaintiff  to  do  what  he  likes  with  the  premises. 
Then  follov/s  the  letter  of  November  27th,  informing  the  defendant 
of  the  offer  which  the  plaintiff  had  received  from  an  intending  tenant, 
and  asking  defendant  if  it  would  pay  the  difference  between  the 
amount  offered  and  the  rent  reserved  in  the  original  lease.  It  will 
be  observed  that,  even  if  we  were  to  give  these  written  communica- 
tions the  same  force  and  effect  as  verbal  statements  made  in  per- 
sonal interviews  between  the  parties,  the  facts  here  are  easily  differ- 
entiated from  those  in  the  Underhill  case.  There  the  tenant  vacated 
the  premises  upon  the  offer  of  the  landlord  to  relet  for  his  benefit 
and  under  such  circumstances  as  to  permit  the  inference  that  he 
accepted  the  offer.  Here  the  landlord's  statement  to  that  effect, 
made  after  the  tenant's  abandonment  of  the  premises,  is  followed 
by  negotiations  in  which  the  tenant  expresses  a  willingness  to  keep 
the  cellar  at  fifty  dollars  per  month  if  the  landlord  will  cancel  the 
lease  as  to  the  rest  of  the  premises.  These  steps  are  succeeded  by 
a  communication  from  the  landlord,  in  which  he  requests  the  tenant 
to-  decide  wdiether  it  will  keep  the  cellar  and  pay  the  deficit  which 
will  arise  by  an  acceptance  of  the  offer  Avhich  the  former  then  had 


SECT.    IVj       GRAY    V.    KAUFMAN   DAIRY    &    ICE    CREAM    CO.  409 

under  consideration.  It  may  well  be  doubted  whether  verbal  declara- 
tions made  in  personal  interviews  between  the  parties,  under  the  cir- 
cumstances above  narrated,  would  support  the  plaintiff's  theory  of 
this  action.  To  create  a  contract  by  implication  there  must  be  an 
unequivocal  and  unqualified  assertion  of  a  right  by  one  of  the 
parties,  and  such  silence  by  the  other  as  to  support  the  legal  infer- 
ence of  his  acquiescence.  But  it  is  clear,  both  upon  principle  and 
authority,  that  we  have  no  right  to  indulge  in  the  assumption  that 
the  letters  above  referred  to  have  the  force  and  effect  of  verbal 
statements  made  in  the  presence  of  the  defendant's  officers.  The 
rule  is  precisely  to  the  contrary.  It  is  well  expressed  in  Learned  v. 
TiUofson,  97  K  Y.  12,  as  follows:  "We  think  that  a  distinction 
exists  between  the  effect  to  be  given  to  oral  declarations  made  by 
one  party  to  another,  which  are  in  answer  to  or  contradictory  of 
some  statement  made  by  the  other  party,  and  a  written  statement  in 
a  letter  written  by  such  party  to  another.  It  may  well  be  that  under 
most  circumstances  what  is  said  to  a  man  to  his  face,  which  conveys 
the  idea  of  an  obligation  upon  his  part  to  the  person  addressing 
him,  or  on  whose  behalf  the  statement  is  made,  he  is  at  least  in  some 
measure  called  upon  to  contradict  or  explain ;  but  a  failure  to  answer 
a  letter  is  entirely  different,  and  there  is  no  rule  of  law  which  re- 
quires a  person  to  enter  into  a  correspondence  with  another  in  refer- 
ence to  a  matter  in  dispute  between  them,  or  which  holds  that  silence 
should  be  regarded  as  an  admission  against  the  party  to  whom  the 
letter  is  addressed.  Such  a  rule  would  enable  one  party  to  obtain 
an  advantage  over  another  and  has  no  sanction  in  the  law."  To 
the  same  effect  are  Bat^h  of  B.  N.  A.  v.  DelafieU,  126  ^.  Y.  418, 
and  Tlwmas  v.  Gaqe,  141  N".  Y.  506. 

It  is  manifest,  therefore,  that  the  act  of  the  plaintiff  in  reletting 
said  premises  under  the  circumstances  referred  to  operated  as  an 
acceptance  of  the  defendant's  offer  to  surrender.  The  judgment 
herein  can  be  supported  upon  no  theory  that  is  consistent  with  the 
established  rules  of  law.  As  the  views  above  expressed  are  decisive 
of  the  case,  it  is  unnecessary  to  discuss  the  other  questions  raised  by 
the  defendant. 

The  judgment  of  the  court  below  should  be  reversed  and  a  new 
trial  granted,  with  costs  to  abide  the  event. 

Landon,  J.  (dissenting).  The  trial  court  found  as  facts  that 
"  Plaintiff  refused  to  accept  a  surrender  of  the  premises,  and  did 
not  accept  it,  and  the  premises  were  at  no  time  surrendered  to  the 
plaintiff.  The  letting  of  the  premises  was  done  with  the  assent  of 
the  defendant."  The  order  of  affirmance  by  the  Appellate  Division 
does  not  state  that  it  was  unanimous,  but  that  is  not  important  here, 
for  the  record  contains  evidence  tending  to  support  the  findings. 
The  evidence  tends  to  show  that  the  defendant  intended  by  its  con- 
duct to  threaten  the  plaintiff  witli  the  loss  of  his  rent,  and  thus  to 
coerce  him  to  relet  the  premises,  and  then  deny  its  assent,  notwith- 


410  LYON    V.    REED  [CHAP.    VI 

standing  after  its  receipt  of  the  plaintiff's  first  letter,  it  told  the 
plaintiff  he  could  do  as  he  liked  with  the  premises.  The  defendant 
thus  replied  to  the  plaintiff's  letter,  at  least  so  the  trial  court,  in 
view  of  all  the  circumstances,  might  find,  and  did  find. 

Parker,  Ch.  J.,  Gray,  O'Brien  and  Haight,  JJ.,  concur  with 
Werner,  J.,  for  reversal;  Landon,  J.,  reads  dissenting  memorandum; 
CuLLEN,  J.,  not  sitting.  .  Judgment  reversed,  etc.  ^ 


LYOX  V.  EEED  AND  OTHERS 
13  M.  &  W.  285.    1844. 

Parke,  B.-  This  was  a  special  case  argued  in  Easter  Term.  It 
was  an  action  of  debt  by  the  plaintiff,  as  assignee  of  the  reversion  of 
certain  houses  and  rope-walks  at  Shadwell,  holden  under  a  lease 
from  the  Dean  of  St.  Paul's  against  the  defendants,  who  are  execu- 
tors of  Shakespeare  Reed,  deceased.  The  plaintiff  claims  from  the 
defendants  nineteen  years'  rent,  accrued  due  between  Christmas, 
1820,  and  Christmas,  1839,  partly  in  the  lifetime  of  Shakespeare 
Reed,  who  held  the  premises  during  his  life,  and  partly  since  his 
decease,  while  the  premises  were  in  the  possession  of  the  defendants, 
his  executors. 

The  material  facts  are  as  follows :  The  premises  in  question  are 
parcel  of  the  possessions  of  the  Dean  of  St.  Paul's,  and  it  appears 
that,  on  the  26th  of  December,  1803,  the  then  dean  demised  a  large 
estate  at  Shadwell,  including  the  houses  and  premises  in  question,  to 
two  persons  of  the  names  of  Ord  and  Planta  (who  were  in  fact 
trustees  for  the  Bowes  family)  for  a  term  of  forty  years,  commenc- 
ing at  Christmas,  1803,  and  which  would,  therefore,  expire  at 
Christmas,  1843.  On  the  24th  of  March,  1808,  Ord  and  Planta 
made  an  underlease  of  the  houses  and  rope-walks  in  question  to 
Shakespeare  Reed  for  thirty-four  years,  commencing  from  Christmas, 
1807,  so  that  the  term  created  by  this  underlease  would  expire  at 
Christmas,  1841,  leaving  a  reversion  of  two  years  in  Ord  and  Planta. 
The  rent  sought  to  be  recovered  is  the  rent  which  accrued  due  on 
the  underlease  between  Christmas,  1820,  and  Christmas,  1839.     It 

1  See  In  re  Mahler,  105  F.  R.  428,  433;  WiUiamson  v.  Crossett.  62  Ark. 
393;  Welcome  v.  Hess,  90  Cal.  507;  Bernard  v.  Rrnard,  175  Cal.  230;  Hessel- 
tine  v.  Seavey,  16  Me.  212;  McGinn  v.  Gladding  Dry  Goods  Co.,  40  R.  I. 
348;  Walls  v.  Atcheson,  3  Bing.  462.  Compare  Leavitt  v.  Fletcher  note^ 
ante,  p.  261. 

Cases  where  the  landlord  entered  and  offered  to  relet  are:  Joslin  v. 
McLean,  99  Mich.  480;  Blake  v.  Dick,  15  Mont.  236;  O'Neil  v.  Pearse,  87 
N.  J.  L.  382.  88  N.  J.  L.  733;  Banks  v.  Berliner,  113  Atl.  (N.  J.)  321;  Lane 
v.  Nelson,  167  Pa.  602;  White  v.  Berry,  24  R.  I.  74;  Eimermann  v.  Nathan, 
116  Wis.  124. 

2  The  opinion  only  is  given. 


SECT.    IV]  LYON    V.   REED  411 

appears  that,  previously  to  the  month  of  October,  1811,  Robert  Harts- 
horn Barber  and  Francis  Charles  Parry  were  appointed  by  the 
Court  of  Chancery  trustees  for  the  Bowes  family,  in  the  place  of 
Ord  and  Planta;  and  by  an  indenture  dated  the  3d  of  October, 
1811,  indorsed  on  the  lease  of  1803,  all  the  property  at  Shadwell 
demised  by  that  lease  was  assigned  by  Ord  and  Planta  to  Barber 
and  Parry,  the  new  trustees.  Soon  after  this  assignment,  the 
Bowes  family  appears  to  have  negotiated  with  the  dean  for  a  renewal 
of  the  lease  of  1803,  and  accordingly  a  new  lease  was  executed  by 
the  dean,  dated  on  the  7th  of  April,  1812,  for  a  term  of  forty  years 
from  Christmas,  1811,  and  which  term  would,  therefore,  endure 
till  Christmas,  1851.  Unfortunately  this  lease,  instead  of  being 
made  to  Barber  and  Parry  (the  new  trustees),  in  whom  the  old  term 
(subject  to  the  underlease  to  Reed)  was  vested,  was  made  to  Ord 
and  Planta,  the  old  trustees;  the  fact  of  the  change  of  trustees  and 
the  assignment  of  the  3d  of  October,  1811,  having  at  the  time  escaped 
observation.  In  this  state  of  things,  a  private  Act  of  Parliament 
was  passed,  enabling  the  dean  and  his  successor  for  the  time  being 
to  grant  leases  of  the  Shadwell  estate  to  the  trustees  of  the  Bowes 
family  for  successive  terms  of  ninety-nine  years,  renewable  forever. 
The  Act,  which  is  intituled  "An  Act  to  enable  the  Dean  of  St. 
Paul's  London,  to  grant  a  Lease  of  Messuages,  Tenements,  Lands, 
and  Hereditaments  in  the  Parish  of  St.  Paul's,  Shadwell,  in  the 
County  of  Middlesex,  and  to  enable  the  Lessees  to  grant  Subleases 
for  building  on  and  repairing  that  Estate,"  received  the  royal  assent 
on  the  22d  of  July,  1812.  It  begins  by  reciting  the  will  of  Mary 
Bowes,  whereby  she  bequeathed  her  leasehold  estate  at  Shadwell, 
held  under  the  Dean  of  St.  Paul's  (being  the  estate  afterwards  de- 
mised by  the  leases  of  26th  December,  1803,  and  the  7th  April, 
1812),  to  Ord  and  Planta,  on  certain  trusts  for  the  Bowes  family. 
It  then  recites  the  lease  of  the  7th  of  April,  1812,  and  after  stating 
that  it  would,  for  the  reasons  therein  mentioned,  be  beneficial  for 
all  parties  that  the  dean  should  be  empowered  to  grant  long  leases 
of  the  Shadwell  property,  perpetually  renewable,  and  further  stating 
that  Ord  and  Planta  were  desirous  of  being  discharged  from  their 
trust,  and  that  John  Osborn  and  John  Burt  had  agreed  to  act  as 
trustees  in  their  place;  it  enacted,  that  it  should  be  lawful  for  the 
dean  and  his  successors  for  the  time  being,  and  he  and  they  are 
thereby  required,  on  a  surrender  of  the  existing  lease,  to  demise  the 
Shadwell  estate  to  Osborn  and  Burt,  their  executors,  administrators, 
and  assigns,  for  a  term  of  ninety-nine  years,  and  at  the  end  of  every 
fifty  years  to  grant  a  new  lease  on  payment  of  a  nominal  fine,  Avith 
various  provisions  (not  necessary  to  be  stated),  for  securing  to  the 
dean  and  his  successor  a  proportion  of  all  improved  rents  to  be 
thereafter  obtained.  And  by  the  second  section  of  the  Act  it  is 
enacted,  that,  immediately  on  the  execution  by  the  dean  of  the  first 
lease  for  ninety-nine  years  to  be  granted  in  pursuance  of  the  Act, 


412  LYON    V.    REED  [CHAP.    VI 

the  lease  of  the  7tli  of  April,  J 812,  should  become  void.  It  is 
plain,  from  the  provisions  contained  in  this  Act,  that  the  persons 
by  whom  it  was  obtained  were  not  aware,  or  had  forgotten  that, 
in  the  month  of  October  preceding,  Ord  and  Planta  had  assigned 
their  interest  in  the  property  to  Barber  and  Parry,  the  new  trus- 
tees appointed  by  the  Court  of  Chancery.  In  pursuance  of  the  Act 
of  Parliament,  by  an  indenture  of  three  parts,  dated  the  31st  day  of 
August,  1812,  and  made  between  the  dean  of  the  first  part,  Thomas 
Bowes  (the  party  beneficially  interested  for  his  life)  of  the  second 
part,  and  Osborn  and  Burt  of  the  third  part,  the  dean  demised  the 
Shadwell  property  to  Osborn  and  Burt  for  a  term  of  ninety-nine 
years,  and  the  demise  is  expressed  to  be  made  as  well  in  considera- 
tion of  the  surrender  of  the  lease  of  the  7th  of  April,  1812,  "  being 
the  lease  last  existing,"  as  also  of  the  rents  and  covenants,  &c. 

Mr.  Bowes,  and  Osborn  and  Burt,  his  trustees,  appear  to  have 
discovered,  before  the  month  of  January,  1814,  the  mistake  into 
which  they  had  fallen,  and  two  further  deeds  were  then  executed 
for  the  purpose  of  curing  the  defect.  By  the  former  of  these  deeds, 
which  bears  date  the  6th  January,  1814,  and  is  made  between 
Barber  and  Parry  of  the  one  part,  and  the  dean  of  the  other  part, 
reciting  that,  at  the  time  of  the  granting  of  the  lease  of  the  7th  of 
April,  1812,  the  estate  and  interest  created  by  the  original  demise 
of  the  20th  of  December,  1803,  was  vested  in  Barber  and  Parry,  and 
also  reciting  that  the  fact  of  the  assignment  to  them  by  the  deed  of 
the  3d  of  October,  1811,  was  not  known  to  the  parties  by  whom  the 
said  Act  was  solicited,  it  is  witnessed,  that  Barber  and  Parry  did 
bargain,  sell,  and  surrender  to  the  dean  the  whole  of  the  said  Shad- 
well  estate,  to  the  intent  that  the  term  of  forty  years,  created  by  the 
lease  of  the  26th  of  December,  1803,  might  be  merged  in  the  free- 
hold, and  that  the  dean  might  execute  a  new  lease  to  Osborn  and 
Burt  according  to  the  said  Act.  By  the  other  deed,  which  bears 
date  the  29th  of  January,  1814,  and  is  made  between  the  dean  of  the 
first  part,  the  said  Thomas  Bowes  of  the  second  part,  and  the  said 
Osborn  and  Burt,  of  the  third  part;  the  dean,  in  consideration  of 
the  effectual  surrender  of  the  two  prior  leases  on  the  26th  of  Decem- 
ber, 1803,  and  the  7th  of  April,  1812,  and  for  the  other  considera- 
tions therein  mentioned,  demised  the  Shadwell  estate,  pursuant  to 
the  said  Act  of  Parliament,  to  Osborn  and  Burt,  their  executors, 
administrators,  and  assigns,  for  a  term  of  ninety-nine  years.  The 
interest  of  Osborn  and  Burt,  under  these  two  leases  to  them,  has,  by 
various  assignments,  become  vested  in  the  plaintiff;  and  there  is  no 
doubt  but  that  he  is  entitled  to  recover  the  rent  in  question  in  this 
action,  if  Osborn  and  Burt  would  have  been  so  entitled. 

Such  being  the  principal  facts,  we  must  consider  how  they  bear 
on  the  several  issues  raised  by  the  pleadings.  The  declaration, 
after  stating  the  demise  from  the  dean  to  Ord  and  Planta  in  1803, 
and  the  underlease  from  them  to  Reed  in  1808,  goes  on  to  state, 


SECT.    IV]  LYON    V.    REED  413 

that,  by  the  deed  of  the  3d  of  October,  ISll,  Ord  and  Planta  assigned 
all  their  interest  in  the  premises  to  Barber  and  Parry,  and  that  the 
dean,  being  seised  of  the  reversion  expectant  on  the  term  of  forty 
years  so  assigned  to  Barber  and  Parry,  by  the  indenture  of  the  31st 
of  August,  1812,  demised  the  premises  to  Osborn  and  Burt  for  a 
term  of  ninety-nine  years,  by  virtue  whereof  they  became  entitled 
to  the  reversion  for  that  term.  The  declaration  then  goes  on  to 
state  that,  by  the  indenture  of  the  6th  of  January,  1814,  Barber 
and  Parrj'  assigned  their  interest  to  the  dean,  to  the  intent  that  he 
might  grant  a  new  lease  to  Osborn  and  Burt ;  and  that  afterwards, 
on  the  29th  of  the  same  month  of  January,  1814,  the  dean,  by  the 
indenture  of  that  date,  made  a  new  demise  of  the  premises  to  Os- 
born and  Burt  for  a  fresh  term  of  ninety-nine  years,  they  by  the 
same  indenture  surrendering  the  former  term  created  by  the  de- 
mise of  the  31st  of  August,  1812.  The  declaration  then  traces 
the  title  in  the  present  plaintiff  by  assignment  from  Osborn  and  Burt 
previously  to  Christmas,  1820,  and  so  claims  title  to  the  rent 
accrued  due  after  that  date. 

To  this  declaration  the  defendants  pleaded  six  pleas :  First,  a  plea 
traversing  the  averment  that,  at  the  time  of  the  demise  to  Osborn 
and  Burt  of  the  31st  of  August,  1812,  the  dean  was  seised  in  fee  of 
the  reversion.  Secondly,  a  plea  traversing  that  demise.  Thirdly,  a 
plea  traversing  the  assignment  hj  Barber  and  Parry  to  the  dean, 
to  the  intent  that  he  might  grant  a  new  lease  to  Osborn  and  Burt. 
Fourthly,  a  plea  traversing  the  surrender  by  Osborn  and  Burt  of 
the  first  term  of  ninety-nine  j^ears.  Fifthly,  a  special  plea  stating 
the  indenture  of  the  7th  of  April,  1812,  whereby  Ord  and  Planta 
became   entitled   to   the  reversion  for  forty  years  from   Christmas, 

1811,  and  so  continued  until,  up  to,  and  after  the  execution  of  the 
indenture  of  the  29th  of  January,  1814.  Sixthly,  a  plea  traversing 
the  demise  to  Osborn  and  Burt  by  the  indenture  of  the  29th  of 
January,  1814.  Issue  was  joined  on  all  the  pleas  except  the  fifth, 
and  to  that  the  plaintiff  replied,  that,  after  the  making  of  the  lease 
of  the  7th  of  April,  1812,  and  before  the  lease  of  the  31st  of  August, 

1812,  the  private  Act  of  Parliament  was  passed,  authorizing  the 
dean,  on  the  surrender  of  the  existing  lease,  to  grant  a  lease  for 
ninety-nine  years  to  Osborn  and  Burt;  and  the  replication  then 
avers  that  the  lease  of  the  31st  of  August,  1812,  Avas  duly  made  in 
pursuance  of  the  Act,  and  that,  at  the  time  when  it  was  made,  the 
lease  of  the  7th  of  April,  1812,  was  duly  surrendered.  To  this  the 
defendants  rejoin,  traversing  the  surrender  of  the  lease  of  the  7th 
of  April,  1812,  and  on  this  issue  was  joined.  The  second,  third, 
and  sixth  issues,  it  will  be  observed,  are  mere  traverses  of  the  execu- 
tion of  deeds  which  are  found  by  the  special  case  to  have  been  duly 
executed;  and,  as  the  traverse  merely  puts  in  issue  the  fact  of  the 
execution,  and  not  the  validity  of  the  deeds  or  the  competency  of 
the  parties  to  make  them,  the  verdict  on  those  issues  must  certainly 


414  LYON    V.    REED  [CHAP.   VI 

be  entered  for  tlie  plaintiff;  and  so  must  that  on  the  fourth  issue, 
whereby  the  defendant  traverses  the  surrender  by  Osborn  and  Burt 
of  the  first  term  of  ninety-nine  years,  when  the  demise  of  the  second 
term  was  made  to  them.  It  is  quite  clear  that  the  acceptance  of  the 
second  demise  was  of  itself  a  surrender  in  law  of  the  first,  even  if 
no  surrender  in  fact  was  made.  For  whom,  then,  is  the  verdict 
on  the  remaining  issues,  the  first  and  fifth,  to  be  entered  ?  The  issue 
on  the  fifth  plea  is,  it  will  be  observed,  whether  the  lease  of  the  7th 
of  April,  1812,  was  duly  surrendered  at  the  time  of  the  making  of 
the  indenture  of  the  31st  August,  1812.  And  the  issue  on  the  first 
plea  is  substantially  the  same;  for  if  the  plaintiff  succeeds  in  show- 
ing that  the  indenture  of  the  7th  April,  1812,  was  duly  surrendered 
as  set  forth  in  his  declaration,  then  it  follows  that  the  dean  was  at 
that  time  seised  of  the  reversion,  and  so  the  plaintiff  must  succeed 
on  the  first  issue;  if,  on  the  other  hand,  he  fail  on  the  fifth  issue, 
he  must  also  fail  on  the  first. 

The  real  question,  therefore,  for  our  consideration  is,  whether  the 
plaintiff  has  succeeded  in  showing  that  the  term  of  the  7th  April 
was  surrendered  previously  to  the  execution  of  the  indenture  of  the 
31st  of  August,  1812.  On  this  subject  it  was  argued  by  the  counsel 
for  the  plaintiff,  first,  that  the  circumstances  of  the  case  "warranted 
the  conclusion  that  there  was  an  actual  surrender  in  fact;  and  if 
that  be  not  so,  then,  secondly,  that  they  prove  conclusively  a  sur- 
render in  point  of  law. 

We  will  consider  each  of  these  propositions  separately.  And  first, 
as  to  a  surrender  in  fact.  The  subject-matter  of  the  lease  of  the  7th 
April,  1812,  was,  it  must  be  observed,  a  reversion;  a  matter,  there- 
fore, lying  in  grant,  and  not  in  livery,  and  of  which,  therefore,  there 
could  be  no  valid  surrender  in  fact  otherwise  than  by  deed;  and 
what  the  plaintiff  must  make  out,  therefore,  on  this  part  of  his  case 
is,  that,  before  the  execution  of  the  first  lease  for  ninety-nine  years, 
Ord  and  Planta,  by  some  deed  not  now  forthcoming,  assigned  or  sur- 
rendered to  the  dean  the  interest  which  they  had  acquired  under 
the  lease  of  the  7th  of  April.  But  what  is  there  to  warrant  us  in 
holding  that  any  such  deed  was  ever  executed?  Prima  facie  a  per- 
son setting  up  a  deed  in  support  of  his  title  is  bound  to  produce 
it.  But  undoubtedly  this  general  obligation  admits  of  many  ex- 
ceptions. Where  there  has  been  long  enjoyment  of  any  right,  which 
could  have  had  no  lawful  origin  except  by  deed,  then,  in  favor  of 
such  enjoyment,  all  necessary  deeds  may  be  presumed,  if  there  is 
nothing  to  negative  such  presumption.  Has  there,  then,  in  this 
case,  been  any  such  enjoyment  as  may  render  it  unnecessary  to  show 
the  deed  on  Avhich  it  has  been  founded  ?  The  only  fact  as  to  enjoy- 
ment stated  in  this  case  has  precisely  an  opposite  tendency;  it  is 
stated,  so  far  as  relates  to  the  property,  the  rent  of  which  forms 
the  subject  of  this  action,  namely  the  houses,  «S:c.,  underlet  to  Reed, 
that  no  rent  has  ever  been  paid;  and  therefore,  as  to  that  portion 


SECT.    IV]  LYON    V.    REED  415 

of  the  property  included  in  the  lease  of  April,  1812,  there  has  cer- 
tainly been  no  enjoyment  inconsistent  with  the  hypothesis  that  that 
lease  was  not  surrendered. 

The  circumstances  on  which  the  plaintiff  mainly  relies  as  estab- 
lishing the  fact  of  a  surrender  by  deed,  are  the  statements  in  the 
two  leases  to  Osborn  and  Burt,  that  they  were  made  in  consideration 
i7iter  alia,  of  the  surrender  of  the  lease  of  the  7th  April,  and  the 
fact  of  that  lease  being  found  among  the  dean's  instruments  of  title. 
These  circumstances,  however,  appear  to  us  to  be  entitled  to  very 
little  weight.  The  ordinary  course  pursued  on  the  renewal  of  a  lease 
is  for  the  lessee  to  deliver  up  the  old  lease  on  receiving  the  new  one, 
and  the  new  lease  usually  states  that  it  is  made  in  consideration  of 
the  surrender  of  the  old  one.  No  surrender  by  deed  is  necessary, 
where,  as  is  commonly  the  case,  the  former  lessee  takes  the  new 
lease,  and  all  which  is  ordinarily  done  to  warrant  the  statement  of 
the  surrender  of  the  old  lease  as  part  of  the  consideration  for  grant- 
ing the  new  one,  is,  that  the  old  lease  itself,  the  parchment  on  which 
it  is  engrossed,  is  delivered  up.  Such  surrender  affords  strong  evi- 
dence that  the  new  lease  has  been  accepted  by  the  old  tenant,  and 
such  acceptance  undoubtedly  operates  as  a  surrender  by  operation 
of  law,  and  so  both  parties  get  all  which  they  require.  We  collect 
from  the  documents  that  this  Avas  the  course  pursued  on  occasion  of 
making  the  lease  of  the  26th  of  December,  1803,  and  the  lease  of  the 
7th  of  April,  1812;  and  we  see  nothing  whatever  to  warrant  the 
conclusion  that  anything  else  was  done  on  occasion  of  making  the 
lease  to  Osborn  and  Burt. 

Where  a  surrender  by  deed  was  understood  by  the  parties  to  be 
necessary,  as  it  was  with  reference  to  the  term  assigned  to  Barber 
and  Parry,  there  it  was  regularly  made,  and  the  deed  of  surrender 
was  indorsed  on  the  lease  itself.  There  is  iio  reason  for  supposing 
that  the  same  course  would  not  have  been  pursued  as  to  the  lease 
of  April,  1812,  if  the  parties  had  considered  it  necessary.  If  any 
surrender  had  been  made,  no  doubt  the  deed  would  have  been  found 
with  the  other  muniments  of  title.  No  such  deed  of  surrender  is 
forthcoming,  and  we  see  nothing  to  justify  us  in  presuming  that 
any  such  deed  ever  existed.  We  may  add,  that  the  statement  in 
the  new  lease,  that  the  old  one  had  been  surrendered,  cannot  certainly 
of  itself  afford  any  evidence  against  the  present  defendants,  who  are 
altogether  strangers  to  the  deed  in  Avliich  those  statements  occur. 

It  remains  to  consider  whether,  although  there  may  have  been  no 
surrender  in  fact,  the  circumstances  of  the  case  will  warrant  us 
in  holding  that  there  was  a  surrender  by  act  and  operation  of  law. 
On  the  part  of  the  plaintiff  it  is  contended,  that  there  is  sufficient 
to  justify  us  in  coming  to  such  a  conclusion,  for  it  is  said,  the  fact 
of  the  lease  of  the  7th  of  April,  1812,  being  found  in  the  possession 
of  the  dean,  even  if  it  does  not  go  the  length  of  establishing;  a  sur- 
render by  deed,  yet  furnishes  very  strong  evidence  to  show,  that 


416  LYON    V.    REED  [CHAP.    VI 

the  new  lease  granted  to  Osborn  and  Burt  was  made  with  the  consent 
of  Ord  and  Planta,  the  lessees  under  tlie  deed  of  the  7th  of  April, 
1812.  And  this,  it  is  contended,  on  the  authority  of  TJt.omaf<  v. 
Cook,  2  B.  &  Aid.  119,  and  Walker  v.  Richardson,  2  M.  &  W. 
882,  is  sufficient  to  cause  a  surrender  by  operation  of  law. 

In  order  to  ascertain  how  far  those  two  cases  can  be  relied  on  as 
authorities,  we  must  consider  what  is  meant  by  a  surrender  by  opera- 
tion of  law.  This  term  is  applied  to  cases  where  the  owner  of  a 
particular  estate  has  been  a  party  to  some  act,  the  validity  of  which 
he  is  by  law  afterwards  estopped  from  disputing,  and  which  would 
not  be  valid  if  his  particular  estate  had  continued  to  exist.  There 
the  law  treats  the  doing  of  such  act  as  amounting  to  a  surrender. 
Thus,  if  lessee  for  years  accept  a  new  lease  from  his  lessor,  he  is 
estopped  from  saying  that  his  lessor  had  not  power  to  make  the 
new  lease;  and,  as  the  lessor  could  not  do  this  until  the  prior  lease 
had  been  surrendered,  the  law  says  that  the  acceptance  of  such 
new  lease  is  of  itself  a  surrender  of  the  former.  So,  if  there  be  ten- 
ant for  life,  remainder  to  another  in  fee,  and  the  remainderman 
comes  on  the  land  and  makes  a  feoffment  to  the  tenant  for  life,  who 
accepts  livery  thereon,  the  tenant  for  life  is  thereby  estopped  from 
disputing  the  seisin  in  fee  of  the  remainderman,  and  so  the  law  says, 
that  such  acceptance  of  livery  amounts  to  a  surrender  of  his  life 
estate.  Again,  if  tenant  for  years  accepts  from  his  lessor  a  grant 
of  a  rent  issuing  out  of  the  land  and  payable  during  the  term,  he 
is  thereby  estopped  from  disputing  his  lessor's  right  to  grant  the 
rent,  and  as  this  could  not  be  done  during  his  term,  therefore  he  is 
deemed  in  law  to  have  surrendered  his  term  to  the  lessor. 

It  is  needless  to  multiply  examples;  all  the  old  cases  will  be 
found  to  depend  on  the  principle  to  which  we  have  adverted,  namely, 
an  act  done  by  or  to  the  owner  of  a  particular  estate,  the  validity 
of  which  he  is  estopped  from  disputing,  and  which  could  not  have 
been  done  if  the  particular  estate  continued  to  exist.  The  law  there 
says,  that  the  act  itself  amounts  to  a  surrender.  In  such  case 
it  will  be  observed  there  can  be  no  question  of  intention.  The  sur- 
render is  not  the  result  of  intention.  It  takes  place  independently, 
and  even  in  spite  of  intention.  Thus,  in  the  cases  which  we  have 
adverted  to  of  a  lessee  taking  a  second  lease  from  the  lessor,  or  a 
tenant  for  life  accepting  a  feoffment  from  the  party  in  remainder, 
or  a  lessee  accepting  a  rent-charge  from  his  lessor,  it  would  not  at 
all  alter  the  case  to  show  that  there  was  no  intention  to  surrender 
the  particular  estate,  or  even  that  there  was  an  express  intention 
to  keep  it  unsurrendered.  In  all  these  cases  the  surrender  would  be 
the  act  of  the  law,  and  would  prevail  in  spite  of  the  intention  of  the 
parties.  These  principles  are  all  clearly  deducible  from  the  cases 
and  doctrine  laid  down  in  Eolle,  and  collected  in  Viner's  Abridg- 
ment, tit.  "  Surrender,"  F,  and  G.  and  in  Comyns'  Dig.,  tit.  "  Sur- 
render," T.  and  I.  2,  and  the  authorities  there  referred  to.     But,  in 


SECT.   IV]  LYON    V.   REED  417 

all  these  cases,  it  is  to  be  observed,  the  owner  of  the  particular 
estate,  by  granting  or  accepting  an  estate  or  interest,  is  a  party  to 
the  act  which  operates  as  a  surrender.  That  ho  agrees  to  an  act 
done  by  the  reversioner  is  not  sufficient.  Brooke,  in  his  Abridg- 
ment, tit.  "  Surrender,"  pi.  48,  questions  the  doctrine  of  Frowike, 
C.  J.,  who  says :  "  If  a  termor  agrees  that  the  reversioner  shall 
make  a  feoffment  to  a  stranger,  this  is  a  surrender,"  and  says  he 
believes  it  is  not  law;  and  the  contrary  was  expressly  decided  in  the 
cr.se  of  Sivift  v.  Heath,  Carthew,  110,  where  it  was  held,  that  the 
consent  of  the  tenant  for  life  to  the  remainderman  making  a  feoff- 
ment to  a  stranger,  did  not  amount  to  a  surrender  of  the  estate  for 
life,  and  to  the  same  effect  are  the  authorities  in  Viner's  Abr.,  "  Sur- 
render," F.  3  and  4. 

If  we  apply  these  principles  to  the  case  now  before  us,  it  will 
be  seen  that  they  do  not  at  all  warrant  the  conclusion,  that  there 
was  a  surrender  of  the  lease  of  the  7th  of  April,  1812,  by  act  and 
operation  of  law.  Even  adopting,  as  we  do,  the  argument  of  the 
plaintiff,  that  the  delivery  up  by  Ord  and  Planta  of  the  lease  in 
question  affords  cogent  evidence  of  their  having  consented  to  the 
making  of  the  new  lease,  still  there  is  no  estoppel  in  such  a  case. 
It  is  an  act  which,  like  any  other  ordinary  act  in  pais,  is  capable  of 
being  explained,  and  its  effect  must  therefore  depend,  not  on  any 
legal  consequence  necessarily  attaching  on  and  arising  out  of  the  act 
itself,  but  on  the  intention  of  the  parties.  Before  the  Statute  of 
Frauds,  the  tenant  In  possession  of  a  corporeal  hereditament  might 
surrender  his  term  by  parol,  and  therefore  the  circumstance  of  his 
delivering  up  his  lease  to  the  lessor  might  afford  strong  evidence 
of  a  surrender  in  fact;  but  certainly  could  not,  on  the  principles 
to  be  gathered  from  the  authorities,  amount  to  a  surrender  by  opera- 
tion of  law,  which  does  not  depend  on  intention  at  all.  On  all 
these  grounds,  we  are  of  opinion  that  there  was  in  this  case  no  sur- 
render by  operation  of  law,  and  we  should  have  considered  the 
case  as  quite  clear,  had  it  not  been  for  some  modern  cases,  to  which 
we  must  now  advert. 

The  first  case,  we  believe,  in  which  any  intimation  is  given  that 
there  could  be  a  surrender  by  act  and  operation  of  law  by  a  demise 
from  the  reversioner  to  a  stranger  with  the  consent  of  the  lessee, 
is  that  of  Stone  v.  Whiting,  2  Stark.  236,  in  which  Holroyd,  J., 
intimates  his  opinion  that  there  could;  but  there  was  no  decision, 
and  he  reserved  the  point.  This  was  followed  soon  afterwards  by 
Thomas  v.  Cooh,  2  Stark.  408;  2  B.  &  Aid.  119.  That  was  an  action 
of  debt  by  a  landlord  against  his  tenant  from  year  to  year,  under 
a  parol  demise.  The  defence  was,  that  the  defendant  Cook,  the 
tenant,  had  put  another  person  (Parkcs)  in  possession,  and  that 
Thomas,  the  plaintiff,  had,  with  the  assent  of  Cook,  the  defendant, 
accepted  Parkes  as  his  tenant,  and  that  so  the  tenancy  of  Cook  had 
been  determined.  The  Court  of  King's  Bench  held,  that  the  tenancy 
was  determined  by  act  and  operation   of  law. 


418  LYON   V.   REED  [CHAP.   VI 

It  is  matter  of  great  regret  that  a  case  involving  a  question  of  so 
much  importance  and  nicety,  shouhl  have  been  decided  by  refusing 
a  motion  for  a  new  trial.  Had  the  case  been  put  into  a  train  for 
more  solemn  argument,  we  cannot  but  think  that  many  considera- 
tions might  have  been  suggested,  which  would  have  led  the  court  to 
pause  before  they  came  to  the  decision  at  which  they  arrived.  Mr. 
Justice  Bayley,  in  his  judgment  says,  the  jury  were  right  in  finding 
that  the  original  tenant  assented,  because,  he  says,  it  was  clearly 
for  his  benefit,  an  observation  which  forcibly  shows  the  uncertainty 
which  the  doctrine  is  calculated  to  create. 

The  acts  in  pais  which  bind  parties  by  way  of  estoppel  are  but 
few,  and  are  pointed  out  by  Lord  Coke,  Co.  Lit.  352  a.  They  are  all 
acts  which  anciently  really  were,  and  in  contemplation  of  law  have 
always  continued  to  be,  acts  of  notoriety,  not  less  formal  and  solemn 
than  the  execution  of  a  deed,  such  as  livery,  entry,  acceptance  of  an 
estate,  and  the  like.  Whether  a  party  had  or  had  not  concurred 
in  an  act  of  this  sort,  was  deemed  a  matter  which  there  could  be 
no  difficulty  in  ascertaining,  and  then  the  legal  consequences  fol- 
lowed. But  in  what  uncertainty  and  peril  will  titles  be  placed,  if 
they  are  liable  to  be  affected  by  such  accidents  as  those  alluded  to 
by  Mr.  Justice  Bayley.  If  the  doctrine  of  Thomas  v.  Coolc  should 
be  extended,  it  may  very  much  affect  titles  to  long  .terms  of  years, 
mortgage  terms,  for  instance,  in  which  it  frequently  happens  that 
there  is  a  consent,  express  or  implied,  by  the  legal  termor  to  a  de- 
mise from  the  mortgagor  to  a  third  person.  To  hold  that  such  a 
transaction  could,  under  any  circumstances,  amount  to  a  surrender 
by  operation  of  law,  would  be  attended  with  most  serious  conse- 
quences. 

The  case  of  Thomas  v.  Cook  has  been  followed  by  others,  and 
acted  upon  to  a  considerable  extent.  Whatever  doubt,  therefore,  we 
might  feel  as  to  the  propriety  of  the  decision,  that  in  such  a  case 
there  was  a  surrender  by  act  and  operation  of  law,  we  should  prob- 
ably not  have  felt  ourselves  justified  in  overruling  it.  And,  perhaps, 
the  case  itself,  and  others  of  the  same  description,  might  be  sup- 
ported upon  the  ground  of  the  actual  occupation  by  the  landlord's 
new  tenants,  which  would  have  the  effect  of  eviction  by  the  land- 
lord himself  in  superseding  the  rent  or  compensation  for  use  and 
occupation  during  the  continuance  of  that  occupation.  But  we  feel 
fully  warranted  in  not  extending  the  doctrine  of  that  case,  which  is 
open  to  so  much  doubt,  especially  as  such  a  course  might  be  at- 
tended with  very  mischievous  consequences  to  the  security  of  titles. 

If,  in  compliance  with  these  cases,  we  hold  that  there  is  a  sur- 
render by  act  and  operation  of  law  where  the  estates  dealt  with  are 
corporeal  and  in  possession,  and  of  which  demises  may  therefore  be 
made  by  parol,  or  writing,  and  where  there  is  an  open  and  notorious 
shifting  of  the  actual  possession,  it  does  not  follow  that  we  should 
adopt  the  same  doctrine  where  reversions  or  incorporeal  heredita- 


SECT.    IV]  LYON    V.   REED  419 

ments  are  disposed  of,  which  pass  only  by  dood.  With  respect  to 
these,  we  think  we  ought  to  abide  by  the  ancient  rules  of  the  common 
law,  which  have  not  been  broken  in  upon  by  any  modern  decision; 
for  that  of  Walker  v.  Richardson,  2  M.  &  W.  882,  which  has  been 
much  relied  on  in  argument,  is  not  to  be  considered  as  any  authority 
in  this  respect,  inasmuch  as  the  distinction  that  the  right  to  tolls 
lay  in  grant  was  never  urged,  and  probably  could  not  have  been  with 
success,  as  the  leases,  perhaps,  passed  the  interest  in  the  soil  itself. 
Moreover,  according  to  the  report  of  that  case,  it  would  seem  that 
the  new  lessees  had,  before  they  accepted  their  lease,  become  entitled 
to  the  old  lease  by  an  actual  assignment  from  the  old  lessee.  If  this 
were  so,  then  there  could,  of  course,  be  no  doubt  but  that  the  old 
lease  was  destroyed  by  the  grant  and  acceptance  of  the  new  one. 
It  is,  however,  right  to  say,  that  we  believe  this  statement  to  have 
crept  into  the  report  inadvertently,  and  that  there  was  not,  in  fact, 
any  such  assignment.  The  result  of  our  anxious  consideration  of 
this  case  is,  that  the  verdict  on  the  issues  on  the  first  plea  and  on 
the  rejoinder  to  the  replication  to  the  fifth  plea,  must  be  entered 
for  the  defendants,  and  as  those  pleas  go  to  the  whole  cause  of  action, 
the  judgment  must  be  for  them. 

In  the  case,  as  it  was  originally  stated,  it  did  not  appear  that  there 
had  been  any  change  of  dean  since  the  original  demise  in  1803.  We 
desired  to  have  the  case  amended  on  this  point,  in  order  that  the 
fact  might  appear,  if  the  case  should  be  turned  into  a  special  ver- 
dict. For  during  the  incumbency  of  the  dean,  who  made  the  lease 
for  ninety-nine  years,  that  lease  would  be  good  independently  of  the 
private  Act,  and  as  the  immediate  reversion,  on  which  the  defend- 
ant's lease  depended,  was  assigned  to  the  dean  by  Barber  and  Parry 
previously  to  the  demise  of  the  29th  of  January,  1814,  that  rever- 
sion undoubtedly  passed  to  Osborn  and  Burt,  and  would  enable  them, 
or  the  plaintiff  claiming  under  them,  to  sue  for  the  rent  so  long 
as  the  estate  of  the  same  dean  continued,  whether  the  lease  for 
ninety-nine  years  was  or  was  not  warranted  by  the  Act;  and  so  the 
plaintiff  might  possibly  have  been  entitled  to  judgment  non  obstante 
veredicto.  It  appears  by  the  case  as  now  amended,  that  the  Bishop 
of  Lincoln  who  was  the  dean  granting  the  leases  of  ninety-nine  years, 
ceased  to  be  dean,  and  was  succeeded  by  Dr.  Van  Mildert  in  Octo- 
ber, 1820,  before  any  part  of  the  rent  sought  to  be  recovered  in  this 
action  had  accrued  due,  and  therefore  no  question  on  this  head  arises. 

Neither  will  the  second  private  Act  stated  in  the  case  aid  the 
plaintiff.  It  appears  that,  in  1820,  the  difficulties  in  which  the 
parties  had  involved  themselves  by  neglecting  to  get  a  proper  sur- 
render of  the  lease  of  the  7th  of  April,  1812,  was  brought  under  the 
consideration  of  the  Court  of  Chancery,  in  a  suit  there  pending 
relative  to  the  affairs  of  the  Bowes  family.  Master  Cox,  by  his 
report  of  the  ir)th  of  February,  1820,  stated,  that  he  was  of  opinion 
that  both  the  leases  of  ninety-nine  years  were  void,  the  first  because 


420  LYON    V.   REED  [CHAP.   VI 

it  was  made  when  the  original  term  of  forty  years  was  outstanding 
in  Barber  and  Parry,  and  the  latter,  because  at  the  time  of  its  cre- 
ation the  lease  of  the  7th  of  April,  1812,  was  still  outstanding,  thus 
showing  clearly  his  opinion,  that  nothing  had  happened  to  cause 
a  surrender  of  that  lease  by  operation  of  law ;  and  he  recommended 
that  an  Act  of  Parliament  should  be  obtained  to  remedy  the  defect. 
His  report  was  afterwards  confirmed,  and  the  second  Act  stated  in 
the  case  was  accordingly  obtained.  That  Act  received  the  royal 
assent  on  the  15th  of  July,  1820,  and  it  was  thereby  enacted,  that 
the  lease  of  the  29th  of  January,  1814,  should  be  valid  to  all  intents 
and  purposes;  and  further,  that  immediately  after  the  passing  of 
the  Act,  the  leases  of  the  26th  of  December,  1803,  the  7th  of  April, 
1812,  and  the  31st  of  August,  1812,  should  be  void  to  all  intents 
and  purposes.  The  effect  of  this  was  to  destroy  altogether  the  re- 
version in  respect  of  which  the  rent  now  sought  to  be  recovered 
was  payable,  and  it  may  therefore  well  be  doubted  whether,  even  if 
all  the  issues  had  been  found  for  the  plaintiff,  he  could  have  had 
judgment.  It  is,  however,  sufficient  for  us  to  say  that  the  Act  cer- 
tainly does  not  entitle  the  plaintiff  to  anything  which  he  would  not 
have  been  entitled  to  if  no  such  Act  had  passed.  More  especially 
when  it  is  considered,  that,  by  the  saving  clause,  the  defendants  are 
excepted  out  of  the  operation  of  the  Act.  The  result  therefore  is, 
that  the  verdict  on  the  first  and  fifth  issues  must  be  entered  for 
the  defendant,  and  on  the  other  issues  for  the  plaintiff,  and  the 
judgment  will  be  for  the  defendant. 

Judgment  for   the   defendant. 


CHAPTER   VII 
JOINT  OWNERSHIP  i 

BARTLET,  Petitioner  v.  HARLOW 
12  Mass.  348.    1815. 

This  was  a  petition  for  partition  of  a  certain  tract  of  land  situate 
in  Plympton  in  the  county  of  Plymouth,  of  a  moiety  of  which  the 
petitioner  alleges  himself  to  be  seised  in  fee,  as  tenant  in  common 
with  the  respondent :  Avho  pleads  that  he  is  sole  seised  of  the  prem- 
ises, and  traverses  the  tenancy  in  common  of  the  petitioner,  on  which 
issue  is  joined. 

At  the  trial  of  this  issue,  which  was  had  before  the  late  Judge 
Bewey  at  the  sittings  here  after  the  last  October  Term,  it  appeared 
that  the  petitioner  claimed  under  an  extent  of  an  execution  duly 
issued  in  his  favor  against  one  Levi  Harlow,  by  virtue  of  which 
the  officer  delivered  to  him  seisin  and  possession  of  one  moiety  of 
the  land  described  in  the  petition,  being  all  the  right  of  the  said 
Levi  Harlow  therein.  —  And  it  was  agreed  by  the  parties,  that  at 
the  time  of  the  said  extent,  the  said  Levi  and  the  respondent  were 
seised  as  tenants  in  common,  by  equal  moieties,  of  a  tract  of  land 
containing  about  sixty  acres :  and  that  the  said  extent  was  on  a 
part  only  of  said  sixty  acres,  describing  it  by  metes  and  bounds,  and 
dividing  it  from  the  residue. 

A  verdict  was  taken  by  consent  for  the  petitioner,  subject  to  the 
opinion  of  the  court,  whether  an  extent,  so  made  on  the  estate  of 
one  tenant  in  common,  of  a  part  only  of  the  tract  of  land  holden 
in  common,  was  valid.  If  the  court  should  be  of  opinion  that  such 
an  extent  was  valid,  the  verdict  was  to  stand,  and  further  proceed- 
ings to  be  had  upon  it :  but  if  the  court  should  be  of  a  different 
opinion,  the  verdict  was  to  be  set  aside,  and  a  verdict  entered  for 
the  respondent. 

Jackson,  J.,  delivered  the  opinion  of  the  court. 

By  our  Statute  of  Executions  the  creditor,  if  he  thinks  proper, 
may  levy  his  execution  on  the  real  estate  of  his  debtor,  wliich  shall 
be  set  off  to  him  by  metes  and  bounds;  and  if  it  is  held  in  jointen- 
ancy,  in  coparcenary,  or  tenancy  in  common,  the  execution  may  be 

1  As  p;rants  and  devises  to  two  or  more  persons  are  now  by  Statute  in 
most  of  the  United  States  (see  Stimson.  Am.  Stat.  Law,  §  1371).  as  well 
as  in  England,  held,  in  general,  to  create  tenancies  in  common  it  seems 
unnecessary  to  print  cases  on  the  question  what  words  at  common  law 
created  a  tenancy   in  common.     S(>e  Warren,  Cas.  on  Prop.,  pp.  478-486. 

421 


422  BARTLET    V.    HARLOW  [CHAP.    VII 

extended  on  the  "  real  estate  held  as  aforesaid,  or  part  thereof,  de- 
scribing the  same  with  as  much  precision  as  the  nature  and  situa- 
tion thereof  will  admit." 

It  is  contended  by  the  counsel  for  the  petitioner,  that  the  officer 
and  the  appraisers,  in  pursuance  of  this  Statute,  may  set  off  all  the 
debtor's  interest  and  estate  in  a  part  of  the  land  held  in  common ; 
and  that,  although  a  levy  on  a  part  of  his  interest  in  the  whole  land 
would  be  good,  yet  they  are  not -confined  to  this  mode. 

On  the  other  side  it  is  contended,  that  the  Statute  speaks  of  levy- 
ing in  such  a  case  on  part  of  the  estate,  and  not  on  pai-t  of  the  land; 
and  that  any  construction,  contrary  to  the  plain  import  of  the  words, 
would  be  highly  injurious  to  the  other  co-tenants.  —  To  this  it  may 
be  added,  that  in  the  following  section  of  the  same  Statute,  it  is 
said  that  "  when  the  real  estate  extended  upon  cannot  be  divided 
and  set  out  by  metes  and  bounds  as  before  described,  or  by  the 
description  before  mentioned,  then  execution  shall  be  extended  upon 
the  rents  of  such  real  estate ;  "  making  a  plain  distinction  between 
the  two  modes  of  levying  before  mentioned,  and  showing  that  the 
description  contemplated  in  case  of  a  jointenancy,  <S:c.  was  not  a 
description  of  the  lands  by  metes  and  bounds. 

This  view  of  the  language  used  by  the  Legislature  would  lead 
us  to  adopt  the  construction  of  the  respondent's  counsel :  and  we  are 
confirmed  in  this  opinion  by  a  more  general  vicAv  of  the  object  of 
the  Statute,  and  of  the  consequences  that  would  result  from  a  differ- 
ent construction. 

The  levy  of  an  execution  upon  real  estate  is  a  kind  of  Statute  con- 
veyance from  the  debtor  to  the  creditor.  "  It  shall  make  as  good  a 
title  to  the  creditor,  his  heirs  and  assigns,  as  the  debtor  had  therein." 
(Section  2.)  It  was  not  the  intention  of  the  Legislature  to  allow 
estates  to  be  created  or  transferred  in  any  new  manner,  altogether 
repugnant  to  the  principles  of  the  common  law" :  but  to  pi\t  a  convey- 
ance under  this  Statute  on  as  good  a  footing  as  if  made  freely  by 
the  debtor.  And  it  is  generally  true,  that  no  estate  or  interest  in 
land  can  be  transferred  by  such  a  levy,  which  the  debtor  might  not 
have  conveyed,  by  any  suitable  instrument,  for  a  valuable  con- 
sideration. 

We  are  then  to  consider  whether  Levi  Harlow,  the  debtor,  could 
have  conveyed  by  deed  to  the  petitioner,  by  metes  and  bounds,  twenty 
acres,  parcel  of  the  sixty  acres  which  he  held  in  common  with  the 
respondent,  so  as  to  entitle  the  petitioner,  to  maintain  a  writ  or  peti- 
tion for  partition  of  the  twenty  acres  against  the  respondent. 

There  is  very  little  concerning  this  question  to  be  found  in  the 
books.  Among  the  numerous  examples  in  Co.  Lit.  and  other  books, 
of  the  severance  of  a  jointenancy,  we  find  many  instances  of  a  con- 
veyance by  one  jointenant  of  a  part  of  his  estate,  but  not  one  un- 
equivocal case  of  a  conveyance  of  his  estate  in  a  part  of  the  land. 
There  is  indeed  one  in  Co.  Lit.  193,  which  may  possibly  be  so  under- 


BARTLET    V.    HARLOW  423 

stood.  He  says,  "  if  two  jointenants  be  of  twenty  acres,  and  one 
maketh  a  feoffment  of  his  part  in  eighteen  acres,  the  other  cannot 
release"  (viz.  to  his  companion)  "his  entire  part,  but  only  in  two 
acres;  for  that  the  jointure  is  severed  for  the  residue."  Lord  Coke 
cites  no  case  for  this  opinion;  so  that  we  have  no  opportunity  to 
ascertain  by  a  recurrence  to  the  facts,  whether  he  contemplated  a 
conveyance  of  the  co-tenant's  part  in  eighteen  specific  acres  by  metes 
and  bounds,  or  in  eighteen  twentieths  of  the  land.  If  the  latter  be 
understood,  it  will  perfectly  well  comport  with  the  context;  and 
will  illustrate  the  general  doctrine  for  which  the  case  is  introduced, 
as  well  as  if  it  be  intended  of  a  specific  portion  of  land.  And  it  is 
observable  that  Lord  Coke  uses  like  words  in  another  place,  where 
it  is  plain  that  he  intends  an  undivided  portion  of  the  estate,  and 
not  a  specific  parcel  of  the  land.  He  says,  if  two  jointenants,  or 
tenants  in  common  are  disseised,  and  one  releases  all  his  right  in 
the  moiety,  he  shall  be  barred  of  his  right  in  the  whole ;  "  but  if  he 
releases  all  his  right  which  he  has  in  the  one  acre,  this  shall  bar 
him  of  his  moiety  of  that  acre  only :  and  yet  the  moiety  of  tAvo  acres 
is  one  acre."  Here  it  is  obvious  that,  if  in  the  latter  case  we  under- 
stand one  acre  described  b}'  metes  and  bounds,  there  is  no  analogy 
between  the  two  cases ;  and  the  expression  at  the  close,  that  "  the 
moiety  of  two  acres  is  one  acre,"  is  wholly  misplaced  and  without 
meaning.  Nor  could  it  ever  have  been  supposed,  that  a  release  of 
his  right  in  one  specific  part  would  bar  him  of  his  right  in  the  other 
part. 

There  is  one  other  case  on  this  point,  which  is  transcribed  by 
Viner  from  Brownlow's  Reports,  157.  A  manor  was  conveyed,  one 
moiety  to  one  man  in  fee,  and  the  other  moiety  to  twelve  others  in 
fee.  The  twelve  made  a  feoffment  to  J.  S.  of  twelve  several  tene- 
ments and  land :  and  J.  S.  made  twelve  several  feoffments  to  those 
twelve.  The  thirteenth  man,  who  had  the  other  moiety,  brought 
one  writ  of  partition  against  them  all,  pretending  that  they  held 
insimul  et  pro  indivlso;  and  by  the  opinion  of  the  whole  court  it 
would  not  lie :  but  he  ought  to  have  brought  several  writs,  Brownlow 
in  the  place  cited  is  stating  several  different  points  relative  to  the 
writ  of  partition,  apparently  taken  from  different  cases  which  he 
had  heard  or  read.  He  mentions  no  name  nor  date  of  the  case  in 
question,  nor  any  other  particulars,  from  which  we  might  learn 
whether  there  was  anything  peculiar  in  the  circumstances,  or  whether 
the  point  now  in  question  was  considered  by  the  court.  A  single 
case  thus  loosely  reported,  is  entitled  to  very  little  consideration, 
when  it  appears  to  be  in  any  degree  inconsistent  with  the  general 
principles  of  the  law  api)licable  to  the  subject. 

On  the  other  hand,  it  has  been  decided  by  this  court,  in  the  case 
of  Porter  v.  Ilill,  9  Mass.  Rep.  34,  that  one  jointenant  cannot  con- 
vey any  specific  part  of  the  land  to  a  stranger :  at  least  not  so  as  to 
prejudice  his  co-tenant.     It  is  indeed  intimated  in  that  case,  that 


424  BARTLET    V.    HARLOW  [CHAP.   VII 

such  a  conveyance  may  operate  by  way  of  estoppel  against  the 
grantor.  But  this  would  not  aid  the  petitioner  in  the  present  state 
of  the  case  now  under  consideration. 

In  2  Co.  68,  and  Cro.  Eliz.  803,  it  is  laid  down,  as  a  general 
principle,  that  one  jointenant  cannot  prejudice  his  companion,  in 
estate,  or  as  to  any  matter  of  inheritance  or  freehold :  although 
as  to  the  profits  of  the  freehold,  as  the  receipt  of  rent,  &c.,  the  acts 
of  one  may  prejudice  the  other." —  But  it  would  in  many  cases  tend 
to  the  prejudice,  and  even  to  the  destruction,  of  the  interest  of  one 
co-tenant,  if  the  other  might  convey  to  a  stranger  his  moiety  in 
several  distinct  parcels  of  the  land.  The  owner  of  a  moiety  of  a 
farm  thus  circumstanced,  instead  of  one  piece  of  land  conveniently 
situated  for  cultivation,  would  on  a  partition  be  compelled  to  take 
perhaps  ten  or  twenty  different  parcels  interspersed  over  the  whole 
tract,  and  separated  by  the  parts  allotted  to  the  several  grantees. 
Suppose  that  two  men  hold  jointly,  or  in  common,  land  in  a  town 
sufficient  only  for  two  house  lots,  and  that  one  of  them  could  convey 
to  ten  persons  his  share  in  as  many  different  portions  of  the  land; 
or  that  so  many  executions  could  be  thus  levied  on  his  share:  the 
other  original  co-tenant  would,  on  a  partition,  be  compelled  to  take 
ten  different  lots  or  parcels  not  adjoining  to  each  other,  and  each 
too  small  for  any  useful  purpose,  instead  of  one  houselot,  to  whicli 
he  was  originally  entitled,  as  against  the  grantor. 

If  it  be  said  that  this  is  a  necessary  incident  to  his  estate,  which 
he  must  be  supposed  to  have  contemplated  when  he  took  it;  it  may 
be  more  justly  said  in  answer,  that  the  restraint  contended  for,  by 
which  one  is  prevented  from  conveying  distinct  portions  of  the  land, 
is  a  necessary  incident  to  the  estate;  and  that  as  each  was  originally 
entitled  to  one  moiety,  for  quantity  and  quality,  to  be  assigned  to 
him  by  commissioners  or  by  a  jury  in  due  course  of  law,  neither 
of  them  shall  by  his  own  act,  control  the  commissioners  or  jurors, 
and  prevent  their  assigning  to  his  companion  such  portion,  and  in 
such  manner,  as  they,  in  the  exercise  of  a  sound  discretion,  avouM 
have  thought  just  and  proper.  As  the  co-tenant  had  not  originally 
any  such  right  or  authority  in  himself,  to  control  the  proceedings 
on  a  partition:  so  neither  can  he  transfer  such  a  right  to  any  as- 
signees or  grantees  of  his  share. 

It  may  be  added,  that  if  one  co-tenant  has  this  right,  the  others 
of  course  have  the  same.  Suppose  then  that  three  or  more  persons 
hold  in  common  a  township  of  wild  land,  and  that  each  of  them, 
without  regard  to  the  others,  should  divide  the  whole  into  such  lots 
as  he  thought  proper,  and  sell  his  share  in  each  lot  to  different  pur- 
chasers. As  the  lines  of  the  lots,  thus  arbitrarily  designated  by  the 
different  owners,  would  perhaps  in  no  instance  coincide,  it  is  easy 
to  see  that  a  partition  among  the  several  grantees  would  become 
extremely  difficult  and  inconvenient :  and  if  we  imagine  a  like  case, 
with  a  greater  number  of  original  owners,  and  consequently  a  greater 


STARR    V.    LEAVITT  42o 

diversity  in  the  boundaries  of  tlie  lots  so  conveyed,  a  partition  would 
become  perhaps  utterly  impossible. 

Whilst  the  right  of  one  co-tenant  to  aliene  any  distinct  portion 
of  the  land  might,  as  we  have  seen,  be  extremely  injurious  to  his 
companion,  the  restraint  on  such  alienations  can  seldom,  if  ever, 
prejudice  the  grantor.  Suppose  one  of  two  co-tenants  of  forty  acres 
wishes  to  sell  ten  acres,  he  may  convey  one  undivided  fourth  part 
of  the  whole,  and  his  grantee  may  by  legal  process  have  his  share 
set  off  to  him.  This  process  of  partition  would  be  equally  neces- 
sary, if  the  conveyance  had  been  of  a  moiety  of  twenty  acres  taken 
out  of  the  forty.  There  is  therefore  no  additional  trouble  or  ex- 
pense :  and  the  only  diiference  is,  that  the  grantor  is  prevented  from 
selecting  any  particular  portion  of  the  whole  tract,  out  of  which  his 
grantee  shall  take  his  share :  Avhich  is  a  right  he  could  never  claim 
or  exercise  in  his  own  behalf,  while  he  continued  the  OAvner  of  the 
whole  moiety. 

We  are  therefore  satisfied  that  the  petitioner  cannot  have  parti- 
tion, as  prayed  for  in  this  case. 

It  does  not  however  follow  that  the  levy  of  his  execution  is  wholly 
void  and  fruitless.  If  the  respondent  should  ever  have  his  moiety 
duly  set  off  to  him  in  severalty,  and  if  the  part  so  assigned  to  him 
should  not  include  that  which  was  taken  on  the  execution  of  the 
petitioner,  we  see  no  reason  why  the  latter  may  not  then  hold  Avhat 
has  thus  been  taken  on  his  execution,  as  there  will  be  no  person 
interested  or  authorized  to  question  his  title,  excepting  Levi  Harlow; 
who  would  probably  be  estopped  by  the  levy  of  the  execution,  as 
he  would  be  by  any  other  conveyance  made  by  himself.^  Neither 
does  it  follow  that  the  petitioner  is  not  now  entitled  to  a  just  pro- 
portion of  the  rents  and  profits  of  the  lands,  if  they  can  be  taken 
in  such  a  manner  as  not  to  infringe  the  right  of  the  respondent  to 
his  share,  nor  to  disturb  him  in  the  enjoyment  of  an  undivided 
moiety  of  the  whole  land.  But  as  these  points  are  not  before  us, 
it  is  unnecessary  further  to  consider  them. 

The  verdict  returned  in  this  case  is  to  be  set  aside,  and  a  verdict 
entered  for  the  respondent,  upon  which  judgment  is  to  be  rendered.^ 


STARR  r.  LEAVITT 

2  Conn.  243.     1817. 

This  was  an  action  of  ejectment,  to  recover  an  undivided  part 
of  two  pieces  of  land,  bearing  such  proportion  to  the  whole  as  597.01 
bears  to  5069.94. 

1  See  Varnum  v.  Abbott,  12  Mass.  474. 

2  And  see  Cressey  v.  Cressey,  215  Mass.  65. 


426  STARR    V.    LEAVITT  [CHAP.   VII 

The  case  was  as  follows.  The  plaintiff  claimed  title  by  virtue 
of  an  execution  in  his  favor,  against  Simeon  Mitchell,  on  which  the 
premises  were  set  off.  The  first  piece  lay  partly  in  lioxbury,  and 
partly  in  Washington ;  and  the  second  wholly  in  Washington.  They 
were  owned  in  equal  undivided  moieties,'  by  the  debtor  and  his 
brother  David  Mitchell,  during  the  life-time  of  the  latter,  as  tenants 
in  common,  the  titles  by  which  they  were  being  held  distinct.  On 
the  death  of  David,  the  debtor  became  entitled,  as  heir-at-law,  to  one 
seventh  part  of  David's  interest,  in  addition  to  the  moiety  which 
he  before  owned.  The  debtor's  interest  in  the  second  piece,  how- 
ever, was  subject  to  the  widow  Susannah  Mitchell's  right  of  dower. 
The  execution  and  cost  amounted  to  597  dollars,  1  cent.  The  land 
in  Washington  was  appraised,  by  one  set  of  appraisers,  at  3452  dol- 
lars, 94  cents;  that  in  Eoxbury,  subject  to  the  encumbrance  of 
dower,  by  another  set  of  appraisers,  at  1617  dollars;  making  in  the 
whole  5069  dollars,  94  cents,  the  undivided  half  being  2534  dollars, 
97  cents.  The  officer  set  off  the  land  as  follows :  "  I  do,  therefore, 
set  off  an  undivided  proportion  and  interest  of  the  debtor  in  the 
above  described  land  and  buildings,  in  the  proportion  that  597  dol- 
lars, 1  cent,  is  to  the  aforesaid  sum  of  2534  dollars,  97  cents;  and 
in  the  whole  of  said  land  before  described,  in  the  proportion  that 
597  dollars,  1  cent,  is  to  the  said  sum  of  5069  dollars,  94  cents; 
and  the  same  is  set  off,  subject  to  the  aforesaid  encumbrance  of  said 
widow's  dower,  to  the  creditor  in  said  execution,  in  full  satisfaction 
thereof,  and  of  my  fees  thereon." 

The  defendant  claimed  title,  by  virtue  of  two  executions  against 
the  same  Simeon  Mitchell,  issued  and  levied  before  that  of  the 
plaintiff.  One  execution,  with  the  cost,  amounted  to  138  dollars, 
21  cents ;  which  the  officer  levied  on  "  the  one  equal  half  "  of  the 
second  piece  above  mentioned.  The  certificate  of  the  appraisers  was 
as  follows :  "  We,  the  subscribers,  did  appraise  the  above  described 
undivided  land  to  be  worth  to  the  creditor  the  sum  of  138  dollars, 
21  cents,  in  full  satisfaction  of  this  execution  and  costs."  The 
land  was  set  off,  by  the  officer,  thus :  "  I  do  hereby  give  the  within 
named  Samuel  Leavitt,  creditor,  all  the  right  and  title  to  the  above 
described  undivided  land,  that  I  by  law  have  a  right  to  give,  for  his 
own  proper  use  and  benefit."  The  other  execution,  amounting,  with 
the  cost,  to  435  dollars,  88  cents,  was  levied  upon  "  the  equal  half 
of  a  piece  of  land  lying  in  Washington,  as  the  property  of  the  exe- 
cution debtor,  and  containing  12  acres  and  79  rods,  lying  in  conignon 
and  undivided  with  the  heirs  of  David  Mitchell,  deceased ;  "  being 
part  of  the  second  piece  before  mentioned,  designated  by  metes  and 
bounds,  and  appraised  at  the  amount  of  the  execution  and  cost. 
This  land  was  set  off  in  the  same  form  as  the  other  piece. 

This  case  was  reserved,  by  agreement  of  parties,  for  the  considera- 
tion and  advice  of  the  nine  judges. 

Swift,  C.  J.     The  plaintiff  and  defendant  both  claim  the  land 


STARR    V.    LEAVITT  427 

clomaiidod,  by  the  levy  of  executions  upon  it,  as  the  estate  of  Simeon 
JVlitcliell;  and  questions  arise  respecting  thcur  validity. 

The  defen(hint  has  levied  upon  part  of  a  piece  of  land,  whicli 
Simeon  owned  as  tenant  in  common  with  the  heirs  of  David  Mitchell; 
the  same  has  been  set  oft"  to  him  by  metes  and  bounds;  and  he  has 
taken  the  undivided  moiety  or  right  of  Simeon  to  the  part  of  the 
tract  so  described.  This  levy  is  void,  according  to  the  principles 
adopted  by  this  court,  in  the  case  of  Hinman  v.  Leavenworth,  2  Conn. 
244  n.^  Simeon  had  no  such  estate  as  an  undivided  moiety  or  share 
in  a  part  of  the  tract  he  owned  as  tenant  in  common :  he  had  an 
undivided  share  in  the  whole  tract;  and  the  proper  mode  of  levying 
the  execution  would  have  been,  to  spread  it  over  the  whole  tract 
holden  by  Simeon  as  tenant  in  common,  and  to  take  such  an  un- 
divided proportion,  as  would  satisfy  his  debt.  If  the  debt  had  been 
sufficient  to  take  the  whole  share  of  Simeon,  then  the  levying  ci'cdi- 
tor  would  have  been  tenant  in  common  with  his  co-tenant :  if  not, 
then  he  would  have  been  tenant  in  common  with  the  others  in  un- 
equal shares,  and  a  partition  of  the  whole  would  have  been  made. 
But  upon  the  present  levy,  partition  must  be  made  of  part  of  the 
common  right  of  Simeon  with  the  other  tenants;  which  cannot  by 
law  be  done. 

The  plaintiff  adopted  the  proper  mode  of  levying  his  execution, 
but  he  has  spread  it  over  two  distinct  tracts  of  land  holden  by  Simeon, 
as  tenant  in  common  with  the  heirs  of  David,  by  distinct  titles,  and 
has  taken  an  undivided  share  of  Simeon,  in  both  pieces;  but  has  not 
taken  the  whole  of  Simeon's  right  in  either  piece.  He  should  have 
taken  the  whole  of  Simeon's  right,  in  the  tract  on  w^hich  he  first 
levied,  and  then,  if  that  had  been  insufficient  to  satisfy  his  execution, 
he  might  have  levied  on  the  other  tract,  and  have  taken  sufficient 
to  pay  his  debt.  If  the  mode  adopted  by  the  plaintiff  should  be 
sanctioned,  it  would  be  in  the  power  of  a  creditor  to  levy  an  execu- 
tion upon  any  number  of  separate  tracts  of  land,  holden  by  a  debtor 
as  tenant  in  common,  by  distinct  titles,  and  with  different  co-tenants, 
and  take  an  undivided  share  of  each,  so  as  to  become  tenant  in  com- 
mon with  them  all.  This  would  be  productive  of  great  and  unneces- 
sary expense,  and  might  embarass  the  title  as  well  as  the  occupation 
of  the  lands,  and  ought  not  to  be  permitted. 

I  am  of  opinion  that  the  plaintiff  is  not  entitled  to  recover. 

1  But  see  Highland  Park  Co.  v.  Steele,  235  F.  R.  465;  East  Shore  Co. 
V.  Richmond  Hy.,  172  Cal.  174;  Hartford  Ore  Co.  v.  Miller,  41  Conn.  112. 
131;  Pastinc  v.  Altman,  93  Conn.  707,  713;  Lane  v.  Malcolm,  141  Ga.  424; 
Finley  v.  Dubach,  105  Kan.  GOl,  666;  Pellow  v.  Arctic  Iron  Co.,  164  Mich. 
87;  Warner  v.  Eaton,  78  N.  H.  15;  Kennedy  v.  Boykin,  35  S.  C.  61;  Hitt 
V.  Caney  Coal  Co.,  124  Tenn.  334.  351 ;  47  L.  R.  A.  n.  s.  573  note. 

Compare  New  Haven  v.  Hotchkii^.<i,  77  Conn.  168;  Gulf  Refining  Co.  v. 
Carroll,  145  La.  299;  Ada^n  v.  Briggs  Iron  Co.,  7  Gush.  (Mass.)  361; 
Lee  V.  Follenxhy,  83  Vt.  35. 


428  STARR   V.    LEAVITT  [CHAP.   VII 

In  this  opinion  the  other  judges  severally  concurred,  except  Ed- 
MOND  and  Gould,  .J J.,  who  gave  no  opinion,  the  former  being  re- 
lated to  one  of  the  parties,  and  the  latter  having  been  of  counsel 
in  the  cause.  Judgment  to  he  given  for  the  defendant} 

1  Butler  V.  Roys,  25  Mich.  53,  accord.  Contra,  Thompson  v.  Barber, 
12  N.  H.  563.  Compare  Peabody  v.  Minot,  24  Pick.  (Mass.)  329;  Green  v. 
Arnold,  11  R.  I.  364. 

Note.  —  Actions  by  Joint  Owners  against  Third  Persons.  "In  real 
actions.  (1)  Joint-tenants  and  coparceners  must  join.  Lit.  §§  311,  313.  (2) 
Tenants  in  common  must  sever.  Lit.  §  311;  unless  they  seek  to  recover  some- 
thing undivisible  in  its  nature.     Lit.  §   314. 

"  In  ejectment.  This  action  was  based  on  a  fictitious  demise.  If  the  de- 
mise was  feigned  to  have  been  made  by  joint-tenants  or  coparceners  jointly, 
tlie  ejecmtent  must  be  brought  on  the  feigned  demise;  but  if  one  of  them 
is  feigned  to  have  demised  his  share  separately,  ejectment  can  be  brought 
on  the  separate  demise.  Roe  v.  Lonsdale,  12  East,  39  (1810).  On  the  other 
hand,  any  seemingly  joint  demise  by  tenants  in  common  is  really  a  demise 
of  their  separate  estates,  and  therefore  one  ejectment  cannot  be  brought  on 
such  demise  as  joint.  Mantle  v.  Wollington,  Cro.  Jac.  166  (1607).  White 
V.  Pickering,  12  S.  &  R.  435  (1816).  Contra,  Jackson  v.  Bradt,  2  Caines' 
Rep.  169  (1804);  Den  d.  Bronson  v.  Paynter,  4  Dev.  &  B.  393  (1839). 

"In  personal  actions  all  must  join,  because  the  injury  is  to  the  possession. 
Lit.  §  315.     [Sligo  Furnace  Co.  v.  Dalton,  255  F.  R.  532.] 

"  It  may  be  observed  that  in  an  action  for  nuisance  all  the  owners  of  the 
land  on  which  the  nuisance  is  alleged  to  exist  must  be  joined  as  defendants. 
1  Wms.  Saund.  291  g. 

"  In  many  of  the  United  States,  joint-tenants,  coparceners,  and  tenants  in 
common  are  now  allowed  by  Statute  to  join  or  sever  at  their  pleasure. 

"  When  one  tenant  in  common  in  possession  has  been  ejected  by  a  stranger 
to  the  title,  such  tenant  can  recover  the  possession  counting  on  his  own 
seisin,  and  a  disturbance  of  it;  but  when  he  has  not  been  in  possession,  or 
otherwise  counts  on  his  title  to  an  undivided  share,  he  can  recover  against 
a  stranger  only  that  share.  Jackson  v.  Van  Bergen,  1  Johns,  Cas.  101 
(1799).  Deivey  v.  Broum,  2  Pick.  387  (1824).  Dawson  v.  Mills,  32  Pa.  302 
(1858).  Gray  v.  Givcns,  26  Mo.  291  (1858).  ^ut  see  Baber  v.  Henderson, 
156  Mo.  566  (1900).     [Moppin  v.  Norton,  40  Okla.  284.] 

"  It  has,  however,  been  held  in  some  States  that  one  tenant  in  common 
can  recover  possession  of  the  whole  property  as  against  a  stranger.  Barrett 
v.  French,  1  Conn.  354  (1815).  Phillips  v.  Medbury,  7  Conn.  568  (1829). 
Robinson  v.  Johnson,  36  Vt.  69  (1863).  Lampsen  v.  Brander,  28  Minn.  526 
(1881).  See  Freem.  Co-ten.  §§  343,  344.  [Hooper  v.  Bankhead,  171  Ala.  626; 
Chandler  v.  Pope,  87  So.  (Ala.)  626;.  11  Col.  L.  Rev.  579.] 

"  When  all  joint  owners  must  join  in  an  action,  it  is  generally  conceded 
that  they  must  all  be  competent  in  order  to  recover.  (But  see  Henry  v. 
Means,  2  Hill,  S.  C.  328  (1834).  The  inference  usually  drawn  from  this  doc- 
trine is  that  if  the  Statute  of  Limitations  has  run  against  one  of  the  plain- 
tiffs, the  suit  is  barred.  This  follows  Perry  v.  Jackson,  4  T.  R.  516  (1792). 
See  Marstellcr  v.  M'Clean,  7  Cranch,  156  (1812).  But  sometimes  the  opposite 
conclusion  is  drawn;  viz.,  that  if  one  of  the  plaintiffs  is  not  barred,  none  of 
them  are.  Lahiffe  v.  Smart,  1  Bail.  192  (1829).  See  Sanford  v.  Button,  4 
Day,  310  (1810);  Meese  v.  Keefe,  10  Ohio,  362  (1841).  Cf.  Shute  v.  Wade, 
5  Yerg.  1  (1833).  [DeVaughn  v.  McLeroy,  82  Ga.  687,  713;  Ferguson  v. 
Pnnce,  136  Tenn.  543,  559.] 

"But  where,  under  State  Statutes,  joint  owners  who  need  not  join  in 
fact  do  so,  if  one  is  barred,  all  are  barred,  even  in  those  jurisdictions  where, 


PAGE    V.    WEBSTER  429 

PAGE  V.  WEBSTEK  AND  ANOTHEE 

8  Mich.  263.    1860. 

Questions  reserved  from  Montcalm  Circuit  in  Chancery,  where 
Canso  Crane,  one  of  the  defendants,  had  interposed  a  demurrer  to 
the  bill  of  complaint,  for  multifariousness.  The  case  is  sufficiently 
stated  in  the  opinion. 

Martin,  C.  J.  This  bill  is  filed  for  partition  of  real  estate  held 
by  the  complainants  and  defendants  as  tenants  in  common.  As  to 
"Webster,  who  is  described  as  being  the  owner  of  an  undivided  one- 
fourth,  the  bill  is  taken  as  confessed.  Crane  is  represented  as  the 
owner  of  another  undivided  one-fourth,  and  the  bill  further  alleges 
that  he  has  a  pretended  title  which  he  claims  to  hold  as  adverse  to 
that  of  his  co-tenants,  but  which  is  averred  to  be  fraudulent  and 
void;  and  they  ask  to  have  it  so  declared,  in  order  that  partition 
of  the  several  interests  of  the  owners  may  be  made.  The  facts  re- 
specting this  title  are  set  out  in  the  bill  substantially  as  follows : 
The  whole  of  the  lands  owned  in  common  was  sold  at  tax  sales,  for 
non-payment  of  taxes  assessed  thereon  during  the  continuance  of  the 
tenancy  in  common;  and  upon  such  sales,  the  defendant  Crane, 
being  such  co-tenant,  hid  off  the  same  for  the  taxes  of  certain  years, 
and  for  those  of  other  years  caused  the  land  to  be  bid  off  by  his 
brother,  but  for  his  own  use,  and,  as  the  bill  alleges,  he  took  a  trans- 
fer of  the  bids,  and  procured  deeds  from  the  Auditor-General  to  be 
executed  therefor  to  himself.  Keed,  in  his  lifetime,  offered  to  pay 
Crane  his  proportion  of  such  bids,  and  the  interest,  &c.,  and  the 
complainants,  who  are  his  executor  and  devisees,  are  still  ready  and 
now  offer  to  do  so;  but  they  also  insist  that  such  sales  were  invalid 
for  irregularities,  and  that  Crane's  title  is  a  cloud  upon  theirs  wliich 
ought  to  be  removed. 

This,  Crane  contends,  is  an  assertion  and  admission  of  an  adverse 
title  and  claim  in  himself,  which  cannot  be  litigated  in  this  suit' 
but  that  the  validity  of  his  title  thus  acquired  should  be  first  de- 
termined at  law,  and  if  found  to  be  invalid,  then  this  suit  can  be 
maintained. 

It  is  unnecessary  to  determine  whether,  on  a  bill  for  partition  be- 
tween tenants  in  common,  adverse  titles  or  claims  can  be  litigated 
and  settled ;  because,  if  the  allegations  of  this  bill  are  true  —  and  the 
demurrer  admits  their  truth  —  Crane  has  no  adverse  title  or  claim. 
He  occupies  neither  the  position  of  one  purchasing  in  an  outstanding 


if  the  joining  is  compulson',  none  are  barred.  Sanford  v.  Button,  uhl  sup. 
Moore  v.  Armstrong,  10  Ohio,  11  (1840).  Freem.  Co-ten.  §§  375-378."  6 
Gray,  Cas.  on  Prop.,  2d  ed.,  pp.  508,  509.  [The  citations  in  brackets  are 
inserted  by  the  editor.] 


430  PAGE    V.    WEBSTER  [CHAP.   VII 

adverse  title/  nor  of  one  purcliasing  from  a  bona  fide  purchaser  at 
a  tax  sale,  whose  title  had  become  absolute,  whereby  the  co-tenancy 
had  been  dissolved.^  He  stands  simply  as  one  who  has  paid  upon 
compulsion  taxes  assessed  against  the  property  held  by  him  in  com- 
mon with  others. 

The  burden  was  cast  upon  him  and  his  co-tenants  to  pay  the  taxes 
assessed  against  the  land.  This  each  might  have  discharged,  so  far 
as  his  own  interest  was  concerned,  by  paying  his  aliquot  proportion 
of  the  tax;  and  thus  relieved  such  interest  from  the  lien  for  the  tax 
which  the  law  imposed  upon  it.  Had  Crane  done  this,  and  after- 
wards bid  in  his  co-tenants'  interest  sold  for  their  default,  perhaps 
a  different  rule  might  obtain,  and  he  have  acquired  a  good  title  as 
against  them :  but  such  is  not  this  case,  and  no  opinion  is  called  for 
upon  such  a  state  of  facts.     But  as  they  all  neglected  to  discharge 

1  "In  some  cases,  says  Littleton  (sect.  307),  a  release  to  one  joint  tenant 
shall  aid  the  joint  tenant  to  whom  it  was  not  made,  as  well  as  him  to  whom 
it  was  made.  I  will  not  say,  however,  that  one  tenant  in  common  may 
not,  in  any  case,  purchase  in  an  outstanding  title  for  his  exclusive  benefit. 
But  when  two  devisees  are  in  possession,  under  an  imperfect  title,  derived 
from  their  common  ancestor,  there  would  seem,  naturally  and  equitably,  to 
arise  an  obligation  between  them,  resulting  from  their  joint  claim  and 
community  of  interests,  that  one  of  them  should  not  affect  the  claim,  to 
the  prejudice  of  the  other.  It  is  like  an  expense  laid  out  upon  a  common 
subject,  by  one  of  the  owners  in  which  case  all  are  entitled  to  the  common 
benefit,  on  bearing  a  due  proportion  of  the  expense.  It  is  not  consistent 
with  good  faith,  nor  with  the  duty  which  the  connection  of  the  parties,  as 
claimants  of  a  common  subject,  created,  that  one  of  them  should  be  able, 
without  the  consent  of  the  other,  to  buy  in  an  outstanding  title,  and  appro- 
priate the  whole  subject  to  himself,  and  thus  undermine  and  oust  his  com- 
panion. It  would  be  repugnant  to  a  sense  of  refined  and  accurate  justice.  It 
would  be  immoral,  because  it  would  be  against  the  reciprocal  obligation  to 
do  nothing  to  the  prejudice  of  each  other's  equal  claim,  which  the  relation- 
ship of  the  parties,  as  joint  devisees,  created.  Community  of  interest  pro- 
duces a  community  of  duty,  and  there  is  no  real  difference,  on  the  ground 
of  policy  and  justice,  whether  one  co-tenant  buys  up  an  outstanding  encum- 
brance, or  an  adverse  title,  to  disseise  and  expel  his  co-tenant.  It  cannot 
be  tolerated,  when  applied  to  a  common  subject,  in  which  the  parties  had 
equal  concern,  and  which  a  mutual  obligation  to  deal  candidly  and  benevo- 
lently with  each  other,  and  to  cause  no  harm  to  their  joint  interest."  —  Per 
Chancellor  Ivent  in  Van  Home  v.  Fonda,  5  Johns.  Ch.  (N.  Y.)  388,  407^08. 

And  see  Rothicell  v.  Dewees,  2  Black  (U.  S.)  613,  618;  Comett  v.  Burrh- 
field,  142  Ky.  357;  Cobum  v.  Page,  105  Me.  458;  Watson  v.  Vimon,  108  Miss. 
600,  611;  Davis  v.  Givins,  71  Mo.  94;  Gearheart  v.  Gearheart,  213  S.  W. 
(Mo.)  31;  24  Yale  L.  J.  316;  6  A.  L.  R.  297. 

Compare  Starkweather  v.  Jenner,  216  U.  S.  524;  McNutt  v.  Nuevo  Land 
Co.,  167  Cal.  459;  Scanlon  v.  Parish,  85  Conn.  379;  Barteau  v.  Merriam, 
52  Minn.  222;  Becker  v.  Becker,  254  Mo.  668;  Wenzell  v.  O'Neal,  222  S.  W 
(Mo.)  392;  Jackson  v.  Baird,  148  N.  C.  29;  McLawhorn  v.  Harris.  156  N.  C. 
107:  Troxler  v.  Gant,  173  N.  C.  422;  Hogan  v.  Utter,  175  N.  C.  332;  Webster 
v.  Rogers,  87  Oreg.  547,  557;  Daris  v.  Solan,  132  Tenn.  225;  Roberts  v. 
Thorn.  25  Tex.  728;  Cedar  Canyon  Co.  v.  Yarwood,  27  Wash.  271;  Kennedy 
V.  De  Trafford,   [1897]   A.  C.  180. 

2  See  Dubois  v.  Cainpau,  24  Mich.  360,  370. 


PAGE    V.    WEBSTER  431 

this  burden,  and  as  the  coercive  measure  of  a  sale  of  the  land  Wcis 
resorted  to  by  the  State  to  compel  it,  when  Crane  bid  in,  or  pro- 
cured another  to  bid  in  the  land  for  him,  and  took  the  deeds  to  him- 
self, he  acquired  thereby  no  title  as  against  his  co-tenants,  as  this 
was  but  another  way  of  discharging  such  burden.  He  was  in  de- 
fault himself;  and  his  default,  as  well  as  that  of  the  other  co-tenants, 
occasioned  the  sale;  and  he  cannot  be  permitted  to  take  advantage 
of  his  own  neglect  of  duty,  to  acquire  the  title  of  others.  So  far  as 
this  suit  is  concerned,  therefore,  he  stands  in  the  precise  situation 
in  which  he  would,  had  he  voluntarily  paid  the  whole  amount  of 
taxes  before  sale.  He  has  no  title,  but  simply  a  right  to  compel 
contribution  from  his  co-tenants;  and  the  bill  is  not  multifarious 
for  averring  the  facts,  the  character  of  the  purchase,  and  his  adverse 
claims  founded  upon  it;  nor  for  praying  relief  against  them  in  aid 
of  the  partition.  See  Lewis  v.  Robinson,  10  Watts,  354;  WiJliajns 
V.  Gray,  3  Greenl.  207;  Van  Home  v.  Fonda,  5  Johns.  Ch.  407. 

Such  being  the  rule,  both  of  law  and  equity,  complainants  are 
entitled  to  the  discovery  sought;  for  if  Crane's  title  be  of  the  char- 
acter charged  in  the  bill,  the  court  may  and  ought  to  declare  it  void 
and  no  impediment  in  the  way  of  making  partition  between  these 
parties.    See  Overton  v.  WoolfoIJc,  6  Dana,  374. 

The  interests  of  the  several  complainants  are  set  forth  with  suffi- 
cient particularity.  The  Statute  (Comp.  L.  §  4619)  requires  that 
the  bill  shall  set  forth  the  rights  and  titles  of  all  persons  interested 
in  the  land,  so  far  as  the  same  are  known  to  the  complainant.  These 
complainants  proceed  jointly  as  the  executor  and  devisees  of  Heze- 
kiah  H.  Reed,  for  a  partition  between  the  estate  and  these  defend- 
ants. They  ask  no  partition  as  between  themselves.  So  far  as  the 
executor  is  concerned,  he  represents  the  whole  title,  and  the  devisees 
unite  Avith  him  as  interested  in  the  subject-matter,  and  submitting 
to  be  bound  by  the  decree.  This  they  may  do,  as  indeed  may  all 
representatives  of  a  single  interest.    See  Hill,  on  Eeal  Property,  606. 

The  objection  of  the  defendant  Crane  appears  to  be,  that  the  in- 
terest of  each  complainant  is  not  set  out  with  sufficient  particular- 
ity, and  that  the  bill  does  not  show  in  what  proportions  the  com- 
plainants take  under  the  will  of  Reed,  nor  in  what  manner  Page 
has  an  interest  in  the  land,  nor  how  much  that  interest  is.  The  bill 
avers  that  Hezekiah  H.  Reed,  in  his  lifetime,  was  seised  of  the 
undivided  one-half  of  the  lands  in  question,  and  while  so  seised, 
died,  leaving  his  last  will  and  testament,  whereby,  among  other 
things.  Page  was  nominated  his  executor,  and  the  land  was  devised 
in  common  to  the  other  complainants,  with  the  power  nevertheless 
in  such  executor  to  sell  and  dispose  of  the  same.  There  is  no  am- 
biguity in  this  statement  of  the  interests  of  the  several  complainants, 
which,  with  the  exception  of  that  of  Page,  would  necessarily  be 
share  and  share  alike;  and  Page's  interest  is  stated  with  sufficient 
clearness  as  that  of  an  executor  with  power  to  sell  and  dispose  of 


432  KIRKPATRICK   V.    MATHIOT  [CHAP.   VII 

the  whole  interest  which  the  testator  had  in  the  land.  I  can  per- 
ceive no  necessity  in  any  case  for  greater  particularity;  nor  are  we 
referred  to  any  authorities  or  any  principle  of  pleading  requiring 
it.  Sufficient  is  stated  to  enable  the  court  to  take  the  necessary 
proofs  of  the  interests  of  the  several  parties,  upon  which  to  decree 
a  partition;  and  especially  in  this  case,  where  the  complainants  seek 
no  partition  as  between  themselves. 

Let  it  be  certified  to  the  Circuit  Court  for  the  county  of  Mont- 
calm, as  the  opinion  of  this  court,  that,  upon  the  points  reserved, 
the  demurrer  should  be  overruled. 

The  other  justices  concurred.^ 


KIRKPATRICK  v.  MATHIOT 
4  W.  &  S.  (Pa.)  251.     1842. 

Error  to  the  Common  Pleas  of  Westmoreland  County. 

David  Kirkpatrick  against  Jacob  D.  Mathiot  and  Noah  Mendall. 
This  was  an  action  of  ejectment  for  the  undivided  fourth  part  of  a 
tract  of  land :  in  which  the  parties  stated  the  following  facts,  and 
considered  them  in  the  nature  of  a  special  verdict. 

Previous  to  the  8th  of  January,  1801,  John  Probst  was  the  owner 
of  a  full  equal  and  undivided  fourth  part  (the  whole  in  four  equal 
parts  to  be  divided)  of  a  certain  furnace,  called  the  Westmoreland 
furnace  and  forge,  and  of  several  tracts  of  land  connected  with  the 
same,  amounting  altogether  to  2998  acres,  more  or  less,  which  un- 
divided fourth  part  the  plaintiff  claimed  title  to  recover  in  this 
action.  On  the  8th  of  January,  1801,  John  Probst  executed  a  mort- 
gage for  the  Westmoreland  furnace  property,  including  the  lands  in 
controversy,  to  John  Kirkpatrick,  to  secure  the  payment  of  £1050. 
John  Kirkpatrick  sued  out  a  scire  facias  upon  the  mortgage  to  March 
Term,  1807,  of  the  Common  Pleas  of  Westmoreland  County,  against 
the  administrators  of  John  Probst,  deceased,  the  mortgagor,  upon 
which  judgment  was  rendered  for  the  plaintiff,  on  the  26th  of 
November,  1820,  for  the  sum  of  $5744,  with  costs  of  suit.     Where- 

1  And  see  Sanders  v.  Sanders,  145  Ark.  188;  Watson  v.  Williajns,  175 
Pac.  (Kan.)  96;  McGrath  v.  Smith,  175  Ky.  572;  Gulf  Refining  Co.  v.  Jeetns 
Club,  129  La.  1021;  Hurley  v.  Hurley,  148  Mass.  444;  Trumbull  v.  Bruce, 
64  Wash.  644;  James  v.  James,  77  W.  Va.  229;  Jarrett  v.  Osborne  84  W.  Va. 
559;  8  Am.  &  Eng.  Ann.  Cas.  988. 

Compare  Bracken  v.  Cooper,  80  111.  221;  Montague  v.  Selb,  106  111.  49; 
Biggins  v.  Dufficy,  262  111.  26;  Conn  v.  Conn,  58  Iowa  747;  Curry  v.  Lake 
Superior  Iron  Co.,  190  Mich.  445. 

Failure  of  co-tenants  to  contribute  their  proportion  of  the  price  paid. 
Wibon  V.  Linder,  21  Idaho  576,  584;  Kent  v.  Barger.  264  111.  59;  Spurlock 
V.  Spurlock,  161  Ky.  248;  Dickerson  v.  Weeks,  106  Miss.  804;  Du'ight  v. 
Waldron,  96  Wash.  156.    Compare  Abbott  v.  Williams,  74  W.  Va.  652. 


KIRKPATRICK    V.    MATHIOT  433 

upon  levari  facias,  No.  Ill,  of  February  Term,  1821,  was  issued, 
in  virtue  of  which  the  mortgaged  premises  were  struck  down  to 
David  Kirkpatrick,  the  plaintiff  of  record  in  this  action,  on  the  19th 
of  February,  1821. 

John  Klingensmith,  Esq.,  was  sheriff  of  t^e  county  of  Westmore- 
land at  the  time  of  the  levy  and  sale,  and  the  return  was  signed  by 
him,  having  been  commissioned  on  the  19th  of  November,  1819. 
John  Klingensmith  was  commissioned  as  sheriff  of  Westmoreland 
County,  a  second  time,  on  the  28th  of  October,  1828.  On  the  27th 
of  August,  1829,  John  Klingensmith,  sheriff,  in  pursuance  of  the 
proceedings  heretofore  referred  to,  executed  a  deed  to  the  purchaser, 
David  Kirkpatrick,  for  the  land  in  controversy,  and  acknowledged 
it  in  open  court  on  the  13th  of  August,  1830.  No  application  for 
leave  for  the  sheriff  to  execute  the  deed,  nor  any  order  of  court  rela- 
tive thereto,  could  be  found  on  record,  and  no  such  order  existed, 
unless  it  could  be  inferred  from  the  fact  of  the  acknowledgment, 
which  was  regularly  entered  on  the  minutes  of  the  court  on  the 
day  it  purported  to  have  been  taken.  The  above  statement  formed 
the  plaintiff's  claim  of  title. 

Some  time  previous  to  the  3d  of  January,  1825,  Alexander  John- 
son became  vested  with  the  title  to  one  equal  half  part  of  one  equal 
fourth  part  (the  whole  in  four  equal  parts  to  be  divided)  of  the 
Westmoreland  furnace  and  forge,  with  the  appurtenances,  includ- 
ing the  several  tracts  of  land,  supposed  to  embrace  2998  acres,  more 
or  less,  being  the  same  land  of  which  the  plaintiff  claimed  title  to 
the  undivided  fourth  part,  for  which  this  ejectment  was  brought; 
and  on  the  3d  of  January,  1825,  Alexander  Johnson  conveyed  the 
same  to  James  Cuddy.  On  the  26th  of  December,  1825,  James 
Cuddy  sold  to  Jacob  D.  Mathiot  and  Noah  Mendall,  the  defendants, 
all  the  interest  he  had  in  the  property  in  controversy,  in  virtue 
of  the  deed  from  Alexander  Johnson,  together  with  the  half  of  an 
undivided  fourth  part  of  the  same  property  as  held  by  James  Cuddy, 
under  an  article  of  agreement  entered  into  between  himself  and 
M'Clurg  &  M'Knight,  bearing  date  the  15th  of  June,  1825.  Under 
this  contract  the  defendants  became  entitled  to  an  undivided  fourth 
part  (in  four  equal  parts  to  be  divided)  of  the  property  for  which 
this  action  was  brought. 

The  tract  of  land  in  controversy  was  purchased  by  the  commis- 
sioners of  Westmoreland  County  at  a  treasurer's  sale  of  unseated 
land,  on  the  25tli  of  June,  1822,  for  taxes  assessed  on  the  land  as 
unseated,  from  the  year  1808  up  to  the  time  of  sale;  and  a  deed 
was  duly  executed  to  them,  pursuant  to  the  Act  of  Assembly,  by 
the  county  treasurer,  on  the  14th  of  February,  1823.  Five  years 
having  elapsed  without  the  property  having  been  redeemed  by  the 
owners,  the  commissioners  of  Westmoreland  County  proceeded  to 
sell  the  same  pursuant  to  the  Acts  of  Assembly  in  such  case  made 
and  provided;  and  on  the  25th  of  November,  1829,  the  property  in 


434  KIRKPATRICK    V.    MATHIOT  [CHAP.   VII 

controversy  was  struck  down  to  Jacob  D.  Mathiot  and  Noah  Mcndall, 
the  defendants,  for  the  consideration  of  $30,  and  a  deed  duly  exe- 
cuted and  acknowledged  by  them  to  the  purchasers.  Before  the 
commencement  of  this  action,  the  plaintiff  tendered  to  the  defend- 
ants the  proportion  of  the  amount  of  the  purchase  money,  the  con- 
sideration of  the  commissioners'  deed,  which  would  be  equivalent 
to  the  share  to  which  he  claimed  title. 

If,  under  this  statement,  the*  court  should  be  of  opinion  that  the 
plaintiff  was  entitled  to  recover,  judgment  was  to  be  entered  for  him, 
with  six  cents  damages  and  six  cents  costs;  if  otherwise,  judgment 
to  be  entered  for  defendants. 

The  court  below  (White,  President)  rendered  a  judgment  for 
defendants. 

The  opinion  of  the  court  was  delivered  by 

Huston,  J.  The  decision  of  this  case  will  depend  on  the  construc- 
tion of  the  following  sections  of  the  Act  of  13th  of  March,  1815, 
and  on  the  relations  and  duties  of  tenants  in  common  to  each  other. 
The  fifth  section  of  the  Act  provides  that  if  a  sum  shall  not  be  bid 
for  a  tract  of  land  offered  at  treasurer's  sale,  sufficient  to  cover  the 
taxes  and  costs  accrued  at  that  time,  "  it  shall  be  the  duty  of  the 
commissioners  of  the  proper  county,  or  any  of  them,  to  bid  off  the 
same,  and  a  deed  shall  thereupon  be  made  by  the  treasurer  to  the 
commissioners  for  the  time  being,  and  to  their  successors  in  office, 
to  and  for  the  use  of  the  proper  county;  and  it  shall  be  the  duty  of 
the  commissioners  to  provide  a  book,  wherein  shall  be  entered  the 
name  of  the  person  as  whose  estate  the  same  shall  have  been  sold, 
the  quantity  of  land,  and  the  amount  of  taxes  it  was  sold  for;  and 
every  such  tract  shall  not  thereafter,  so  long  as  the  same  shall  re- 
main the  property  of  the  county,  be  charged  in  the  duplicate  of 
the  proper  collector;  but  for  five  years  next  following  such  sale,  if 
it  shall  so  long  be  unredeemed,  the  commissioners  shall,  in  separate 
columns  in  the  same  book,  charge  every  such  tract  of  land  with  the 
reasonable  county  and  road  tax,  according  to  the  quality  of  said 
land,  not  exceeding  in  any  case  the  sum  of  $6  for  every  hundred 
acres."  By  a  subsequent  Act  of  13th  of  March,  1817,  it  was  left 
discretionary  with  the  commissioners  whether  they  would  purchase. 

"  Sect.  VI.  The  right  of  redemption  shall  remain  in  the  real 
owner  for  five  years  after  such  sale,  on  paying  the  treasurer  of  the 
county  all  the  taxes  and  costs  due  thereon  at  the  time  of  the  sale, 
and  interest  therefor;  and  also  the  taxes  assessed  and  interest  there- 
on from  the  time  it  ought  to  have  been  paid,  and  on  the  production 
of  the  treasurer's  receipt  the  commissioners  shall,  'by  deed  poll  in- 
dorsed on  the  back  of  the  deed  of  the  treasurer  to  them,  convey  to 
the  person  who  shall  have  been  the  owner  of  the  land  at  the  time 
of  the  sale,  or  to  his  legal  representatives,  all  the  right  and  title 
which  the  county  may  have  acquired  under  such  sale  as  aforesaid ;  " 
the  road  tax  to  be  paid  to  the  supervisors  of  the  proper  township. 


KIRKPATRICK    V.    MATHIOT  435 

"  Sect.  VII.  If  the  owner  of  such  land  shall  not  redeem  the  same 
within  the  period  aforesaid,  it  shall  thereafter  be  lawful  for  the 
commissioners  to  sell  any  such  land  by  public  sale,  and  make  a  deed 
therefor  to  the  purchaser,  which  shall  be  aA^ailable  in  law  against 
the  county  as  well  as  against  the  person  or  persons  as  whose  estate 
the  same  had  been  sold;  but  no  tract  shall  be  sold  for  a  sum  less 
than  the  amount  of  taxes,  cost,  and  interest  which  shall  be  due  at 
the  time  of  such  sale  by  the  commissioners,"  &c.  And  by  Act  of 
20th  of  March,  1824,  section  second,  it  is  enacted,  that  such  deed 
made  by  the  commissioners  shall  vest  a  good  and  valid  title  in  fee- 
simple  in  the  purchaser.  And  by  the  first  section  it  is  enacted,  that 
the  commissioners  may  sell  lands  so  purchased  for  the  best  price 
that  can  be  obtained  for  them.  There  is  nothing  in  any  of  these 
Acts  which  in  any  degree  gives  color  to  the  idea  that  after  the  five 
years  have  expired  the  former  owner  had  any  particle  of  interest 
in  them,  or  in  the  proceeds  of  them. 

Two  cases  decided  in  this  court  seem  to  settle  all  matters  neces- 
sary to  decide  this  cause.  Huston  v.  Foster,  1  Watts,  477.  The 
offer  of  the  former  owner  to  redeem  after  the  five  years  had  elapsed, 
did  not  avail  him  anything;  and  secondly,  the  sale  by  the  commis- 
sioners after  the  five  years  was  a  sale  by  owners,  and  the  purchaser 
was  not  bound  to  show  anything  but  his  deed.  The  other  case  is 
Lewis  V.  Robinson,  10  Watts,  354.  Land  held  by  two  joint  tenants 
was  sold  for  taxes;  after  the  time  for  redemption  had  gone  by,  one 
of  those  who  had  been  a  tenant  in  common  bought  from  the  pur- 
chaser at  sale  for  taxes.  This  court  held  that  although  if  one  tenant 
in  common  had  redeemed  the  land  within  two  years  it  might  have 
enured  to  the  use  of  the  other;  yet  after  the  time  for  redemption 
had  elapsed,  and  the  title  was  valid  in  the  purchaser,  the  relation 
of  tenants  in  common  ceased,  and  either  might  purchase  and  hold 
for  himself.  These  decisions,  or  the  last  of  them,  wei'c  not  published 
when  this  writ  of  error  was  taken.  Judg/ment  affirmed.^ 


Lit.  §  322.  Also,  in  the  case  aforesaid,  as  if  two  have  an  estate  in 
common  for  term  of  years,  Szc,  the  one  occupy  all,  and  put  the  other 
out  of  possession  and  occupation,  he  which  is  put  out  of  occupation 
shall  have  against  the  other  a  writ  of  ejectione  firnice  of  the  moiety, 
&c. 

Lit.  §  323.  In  the  same  nuiniier  it  is  Avhere  two  hold  the  wardship 
of  lands  or  tenements  during  the  nonage  of  an  infant,  if  the  one 
oust  the  other  of  his  possession,  he  which  is  ousted  shall  have  a  writ 
of  ejectment  de  gard  of  the  moiety,  &c.,  because  that  these  things 

^  And  SCO  Bracely  v.  Noble,  201  Ala.  74;  Alexander  v.  Sully,  50  Iowa 
182.  Compare  Hanley  v.  Federal  Mining  Co..  235  F.  R.  769;  Darksdale  v. 
Learned,  112  Miss.  861. 


436  ACCOUNTING    BY    CO-TENANTS  [CHAP.    VII 

are  chattels  reals,  and  may  be  apportioned  and  sever(;d,  &c.,  but  no 
action  of  trespass  (videlicet)  Quare  clausum  suum  fregit,  et  herbam 
suam,  &c.  conculcavit,  et  consumpsit,  &c.,  et  hujusmodi  actiones,  &c., 
the  one  cannot  have  against  the  other,  for  that  each  of  them  may- 
enter  and  occupy  in  common,  &c.,  per  my  et  per  tout,  the  lands  and 
tenements  which  they  hold  in  common.  But  if  two  be  possessed  of 
chattels  personals  in  common  by  divers  titles,  as  of  a  horse,  an  ox, 
or  a  cow,  kc.,  if  the  one  take  the  whole  to  himself  out  of  the  posses- 
sion of  the  other,  the  other  hath  no  other  remedy  but  to  take  this 
from  him  who  hath  done  to  him  the  wrong  to  occupy  in  common,  &c., 
when  he  can  see  his  time,  &c.  In  the  same  manner  it  is  of  chattels 
reals,  which  cannot  be  severed,  as  in  the  case  aforesaid,  where  two 
be  possessed  of  the  wardship  of  the  body  of  an  infant  within  age, 
if  the  one  taketh  the  infant  out  of  the  possession  of  the  other,  the 
other  hath  no  remedy  by  an  action  by  the  law,  but  to  take  the  infant 
out  of  the  possession  of  the  other  when  he  sees  his  time. 

Co.  Lit.  200  b.  If  two  tenants  in  common  or  jointenants  be  of  an 
house  or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repair 
the  same  and  the  other  will  not,  he  that  is  willing  shall  have  a 
writ  de  reparatione  facienda;  and  the  writ  saith,  ad  reparationem  et 
sustenationem  ejusdem  domiis  teneantur:  whereby  it  appeareth,  that 
owners  are  in  that  case  bound  pro  bono  publico  to  maintain  houses 
and  mills  which  are  for  habitation  and  use  of  men. 

If  one  jointenant  or  tenant  in  common  of  land  maketh  his  com- 
panion his  bailiff  of  his  part,  he  shall  have  an  action  of  account 
against  him,  as  hath  been  said.  But  although  one  tenant  in  common 
or  jointenant  without  being  made  bailiff  take  the  whole  profits,  no 
action  of  account  lieth  against  him;  for  in  an  action  of  account  he 
must  charge  him  either  as  a  guardian,  bailiff,  or  receiver,  as  hath 
been  said  before,  which  he  cannot  do  in  this  case,  unless  his  com- 
panion constitute  him  his  bailiff.  And  therefore  all  those  books 
which  affirm  that  an  action  of  account  lieth  by  one  tenant  in  com- 
mon, or  jointenant,  against  another,  must  be  intended  when  the  one 
maketh  the  other  his  bailiff,  for  otherwise  never  his  bailiff  to  render 
an  account  is  a  good  plea. 

St.  4  &  5  Anne,  c.  16,  §  27.  And  be  it  enacted  by  the  author- 
ity aforesaid.  That  from  and  after  the  said  first  day  of  Trinity 
Term,  actions  of  account  shall  and  may  be  brought  and  maintained 
against  the  executors  and  administrators  of  every  guardian,  bailiff, 
and  receiver ;  and  also  by  one  joint  tenant,  and  tenant  in  common, 
his  executors  and  administrators,  against  the  other,  as  bailiff  for 
receiving  more  than  comes  to  his  just  share  or  proportion,  and 
against  the  executor  and  administrator  of  such  joint  tenant,  or 
tenant  in  common;  and  the  auditors  appointed  by  the  court,  where 
such  actions  shall  be  depending,  shall  be,  and  are  hereby  empowered 


WAIT   V.   RICHARDSON  437 

to  administer  an  oath,  and  examine  the  parties  touching  the  matters 
in  question,  and  for  tlieir  pains  and  trouble  in  auditing  and  taking 
such  account  have  such  allowance  as  the  court  shall  adjudge  to  be 
reasonable,  to  be  paid  by  the  party  on  whose  side  the  balance  of  the 
account  shall  appear  to  be.^ 


WAIT  V.  RICHARDSOJiT  AND  OTHERS 
33  Vt.  190.     1860. 

Trespass  qu.  cl.  fr.  The  facts  in  the  case  are  sufficiently  stated 
in  the  opinion  of  the  court. 

The  county  court,  at  the  September  Term,  1859.  —  Poland,  J., 
presiding, —  held  that  the  action  could  not  be  maintained,  and 
rendered  judgment  for  the  defendants,  to  which  the  plaintiff  ex- 
cepted. 

Barrett,  J.  The  declaration  in  this  case  was  not  furnished  to 
the  court,  but  it  was  treated  in  the  argument  as  being  in  trespass 
quare  cJaiisum.  The  statement  of  agreed  facts  shows  that,  at  the 
time  of  the  alleged  trespass,  the  parties  held  title  to  the  locus  in  quo 
in  undivided  moieties,  thus  being  tenants  in  common;  that  the  plain- 
tiff was  in  adverse  possession,  claiming  the  whole  lot ;  that  the  de- 
fendant, Richardson,  also  claimed  the  whole  lot  under  a  deed  from 
Sheafe,  and  that  he,  with  the  other  defendants  as  his  servants, 
entered  upon  said  lot  under  his  said  claim,  and  cut  and  carried 
away  the  timber  from  all  of  said  lot. 

The  only  question  discussed  at  the  bar  was,  whether  the  plain- 
tiff w^as  entitled  to  maintain  this  form  of  action  for  said  acts  of 
the  defendants. 

In  the  case  of  Booth  v.  Adams  et  al.,  11  Vt.  156,  it  was  held, 
in  the  language  of  the  reported  opinion,  that  "  one  tenant  in  com- 
mon of  land  cannot  maintain  trespass  against  his  co-tenant  uidess 
he  is  expelled  from  the  common  estate,  or  deprived  of  the  common 
enjoyment." 

That  seems  to  have  been  an  action  of  trespass  de  bonis.  The 
decision  of  that  case  upon  its  facts,  irrespective  of  the  peculiar 
form  of  expression  in  which  it  was  announced,  would  seem  to  be 
a  conclusive  authority  against  the  plaintiff  in  the  present  case;  for 
if  trespass  de  honis  would  not  lie,  a  fortiori,  trespass  quare  clauswn 
would  not. 

It  is  undoubtedly  true  that  the  language  of  the  decision  above 
cited,  and  the  remarks  of  the  judge  in  the  discussion  of  the  subject, 
had  exclusive  reference  to  the  action  then  under  consideration,  both 
in  its  form  and  substance;  yet,  as  that  language  is  general,  and  does 

1  See  Stimson,  Am.  St.  Law.  §  1378. 


438  WAIT   V.    RICHARDSON  [CHAP.   VII 

not  expressly  restriet  itself  to  that  form  of  the  action  of  trespass,  the 
urgency,  with  which  the  h-arned  counsel  pressed  upon  the  court  the 
right  of  the  plaintiff  to  maintain  this  action,  has  led  us  to  suspect 
that  they  regard  the  language  of  that  decision,  and  the  remarks  of 
the  judge  in  drawing  up  the  opinion  as  designed  to  indicate  that 
the  action  of  trespass  quare  clausimi  may  be  brought  by  one  tenant 
in  common  against  his  co-tenant,  as  Avell  as  trespass  de  bonis.  The 
cases  cited  by  the  plaintiff's  connsel,  to  show  that  trespass  or  eject- 
ment might  lie  in  favor  of  a  tenant  in  common  against  his  co-tenant 
do  not  sustain  that  proposition. 

Not  one  of  them  was  trespass  quare  clausum,  but  all  were  eject- 
ment or  writ  of  entry.  The  language  of  Judge  Williams  in  Kirhy 
V.  Mayo,  13  Vt.  103,  is  cited.  He  announced  in  general  terms  a 
very  old  and  well  established  doctrine,  that  "  the  possession  of  a 
tenant  in  common,  as  well  as  that  of  a  tenant  at  will,  may  become 
adverse,  so  that  his  co-tenant  or  the  landlord  may  treat  him  as  a 
trespasser,  and  maintain  an  action  against  him  as  such."  And  in 
consequence  of  such  adverse  possession  by  the  defendant  in  that 
case,  the  court  held  that  the  plaintiff  had  lost  his  right  in  common  to 
the  property  in  question.  We  think  it  clear  that  the  learned  judge 
did  not  intend,  by  using  the  term  trespasser,  to  convey  the  idea  that 
the  party  might  be  pursued  by  a  technical  action  of  trespass;  and 
that  he  did  not  so  mean  in  saying  that  an  action  might  be  main- 
tained against  him  as  such  trespasser.  In  our  opinion,  all  that  lie 
meant  was,  that  a  tenant  in  common  might  be  transcending  his  right 
as  such  tenant,  by  the  character  of  the  possession  he  was  holding,  and 
therein,  in  the  generic  and  untechnical  sense  of  the  term,  be  tres- 
passing upon  the  right  of  his  co-tenant ;  as  would  be  true  in  that  case 
of  an  ouster.  In  sucli  case  the  party  whose  right  was  thus  tres- 
passed upon,  might  maintain  an  action  against  his  co-tenant,  on 
account  of  such  transcending  of  legal  right.  But  we  think  it  was  not 
designed  to  indicate  the  form  of  action  which  would  be  proper,  under 
the  rules  of  the  law,  in  such  case. 

We  have  taken  occasion  to  examine  all  the  cases  cited,  and  also 
to  look  into  some  of  the  older,  as  well  as  some  of  the  more  modern 
books.  In  Coke  Lit.  sec.  322,  it  is  said  "  if  two  have  an  estate 
in  common  for  term  of  years,  etc.,  and  one  occupy  all,  and  put  the 
other  out  of  possession  and  occupation,  he  which  is  put  out  of 
occupation  shall  have  against  the  other  a  writ  of  ejectione  firmce 
of  the  moiety,"  etc.  Sec.  323,  "  in  the  same  manner  it  is,  when 
two  hold  the  ownership  of  the  lands  or  tenements  during  the  non- 
age of  an  infant,  if  the  one  oust  the  other  of  his  possession,  he 
which  is  ousted  shall  have  a  writ  of  ejectment  de  garde,  etc., 
"■'  *  ""  but  no  action  of  trespass  {videlicet)  quare  clausum  suum 
f regit,  etc.,  for  that  each  of  them  may  enter  and  occupy  in  common, 
etc.,  per  my  et  per  tout,  the  land  and  tenements  Avhich  they  hold 
in  common."     In  Eayivood  v.  Davis,  Salk.  4,  it  was  agreed  that 


WAIT   V.   RICHARDSON  439 

in  trespass  the  defendant  cannot  plead  in  abatement  that  he  is 
tenant  in  common  with  the  plaintiff,  because  he  may  give  it  in 
evidence,  and  that  will  prove  him  not  guilty. 

In  Sel.  N.  P.  1347,  it  is  said  that  one  tenant  in  common  cannot 
bring  an  action  of  trespass  against  his  co-tenant,  because  each  of 
them  may  enter  and  occupy,  etc.,  per  my  et  per  tout,  the  lands  and 
tenements  which  they  hold  in  common.  In  Cuhitt  v.  Porter,  8  B. 
&  C.  257,  LiTTLEDALE,  J.,  says,  "  If  there  has  been  an  actual 
ouster  by  one  tenant  in  common,  ejectment  will  lie  at  the  suit  of  the 
other.  But  I  am  not  aware  that  trespass  will  lie,  for  in  trespass  the 
breaking  and  entering  is  the  gist  of  the  action;  expulsion  or  ouster 
is  mere  aggravation  of  the  trespass.  If  the  original  entry,  therefore, 
be  lawful,  trespass  will  not  lie."  That  was  trespass  quare  clausiun 
by  one  tenant  in  common  against  another  for  pulling  down  a  parti- 
tion wall  that  was  property  in  common.  In  Cutting  v.  Rockwood, 
2  Pick.  443,  which  was  trespass  quare  clausum,  Wilde,  J.,  says 
"  it  is  a  sufficient  justification  for  the  defendant  that  he  and  those 
under  whom  he  holds  had  an  estate  in  common  with  the  plaintiffs." 

It  was  decided  in  Goodtitle  v.  Toomhs,  3  Wils.  118,  that  after 
a  recovery  in  ejectment  by  a  tenant  in  common  against  his  co-ten- 
ant, an  action  of  trespass  for  the  mesne  profits  would  lie  between 
the  same  parties.  So  far  as  I  have  examined,  that  seems  to  be 
the  first  case  of  the  kind  that  the  books  show  to  have  been  main- 
tained for  mesne  profits.  Jt  is  regarded  as  an  exception  to  the 
established  rule,  and  seems  designed,  in  connection  with  the  modern 
action  of  ejectment  in  England,  (in  which  the  term  only  and  nomi- 
nal damages  can  be  recovered,)  to  supply  the  place  and  office  of  the 
old  ejectment  at  common  law,  in  which  mesne  profits  were  recover- 
able by  way  of  damage.  In  this  action  of  trespass  for  mesne  profits, 
the  prior  recovery  in  ejectment  is  conclusive  in  favor  of  the  plain- 
tiff of  his  right  to  recover  such  damage  as  he  can  show  by  having 
been  kept  out  of  the  common  property,  including  the  mesne  profits. 
It  is  obvious  that  this  all  proceeds  upon  a  ground  and  gist  of  action 
very  different  from  a  trespass  by  hreahing  and  entering  the  plain- 
tiff's close.  It  seems  to  be  adopted  by  the  courts,  as  a  kind  of  neces- 
sary complement  to  the  modern  ejectment  in  England,  neces- 
sary in  order  to  afford  the  plaintiff,  recovering  in  ejectment,  ade- 
quate means  of  remedy  for  the  invasion  of  his  rights,  as  established 
by  the  judgment  in  ejectment. 

The  mere  entry  upon  the  common  land  by  one  of  the  tenants, 
and  cutting  and  carrying  off  the  timber  tlierefrom,  is  nowhere 
treated  as  giving  to  the  other  tenant  the  right  to  maintain  an  action 
of  trespass  of  any  kind,  and  least  of  all  could  it  give  the  right 
to  maintain  trespass  q\i.  el.  Superadd  the  fact  Avhich  is  shown  in 
this  case,  that  the  plaintiff  herself  was  all  the  while  in  possession 
of  the  property,  clniming  to  hold  it  adversely  to  the  defendant,  in 
exclusive  ownership,  and  the  entire  lack  of  ground  for  maintaining 


440  WAIT    V.    RICHARDSON  [CHAP.    VII 

this  action,  cither  upon  principle  or  precedent,  is  very  palpable.  See 
1  Swift's  Dig.  514. 

The  manner  in  which  the  subject  of  trespass  to  real  property  is 
presented  in  Hammond's  N.  P.  151,  (a  book  remarkable  for  philo- 
sophical and  logical  method  in  propounding  and  developing  legal 
principles,)  makes  palpable  the  paradox  involved  in  the  idea  of 
the  right  of  a  tenant  in  common  to  maintain  trespass  qu.  cl.  against 
his  co-tenant.  "  In  every  case  where  one  man  has  a  right  to  exclude 
another  from  his  real  immovable  property,  the  law  encircles  his 
estate  if  it  be  not  already  enclosed,  with  an  imaginary  fence,  etc., 
*  *  *  and  entitles  him  to  a  compensation  in  damages  for  the 
injury  he  sustains  by  the  act  of  another  passing  through  the  bound- 
ary, denominating  the  injurious  act  a  breach  of  the  enclosure."  It 
is  fundamental  in  the  law  of  the  subject  that  one  tenant  in  common 
has  no  right  to  exclude  the  other  from  the  common  property.  Hence 
any  enclosure  of  it,  whether  by  the  imaginary  fence  that  the  law 
constructs,  or  by  a  real  one  constructed  by  the  hands  of  men,  de- 
fines no  right  in  exclusion  of,  and  constitutes  no  barrier  against, 
either  of  the  common  tenants;  and  of  course  the  passing  through 
such  boundary  by  either  of  them  would  be  no  breach  of  the  enclo- 
sure, and  could  give  no  right  of  action  in  trespass  qiiare  clausum 
fregit. 

It  is  needless  to  pursue  the  discussion  further.  As  before  re- 
marked, the  case  cited  from  11  Vt.  supra,  seems  to  us  to  be  a  con- 
clusive authority  against  this  action,  as  it  stands  upon  the  agreed 
statement  of  facts.  With  that  decision  upon  the  point  then  under 
judgment,  we  are  well  satisfied.  Judgment  affirmed.^ 

1  "  The  court,  however,  did  err  in  submitting  the  case  to  the  jury  upon 
the  theory  of  an  ownership  in  common  by  the  adjoining  proprietors,  not 
because  the  undisputed  facts  in  the  case  show  that  the  south  half  of  the 
hedge  fence  was  appurtenant  to  the  west  forty,  but  because  appellee  was 
not  entitled  to  recover  damages  from  appellants  in  an  action  of  trespass 
quare  clausum  fregit  for  the  destruction  of  the  hedge  fence  if  the  hedge 
was  owned  in  common  by  appellants  and  appellee.  It  is  elementarj'  that 
one  tenant  in  common  cannot  be  guilty  of  committing  a  trespass  upon 
property  which  he  owns  in  common  with  another."  —  Per  Cooke.  J.,  in 
Conklin  v.  Newman,  278  111.  30,  35,  36.  See  Buchanan  v.  Jencks,  38  R.  I. 
443;  Martyn  v.  Knowllys,  8  T.  R.  145;  2  A,  L.  R.  993. 

Contra,  Wilkinson  v.  Haygarth,  12  Q.  B.  837.  See  Henncs  v.  Hehard,  169 
Mich.  670. 

Compare  Lyon  v.  Bursey,  42  App.  D.  C.  519;  Abbey  v.  Wheeler,  170  N.  Y. 
122;  Cames  v.  Dalton,  56  Oreg.  596. 

In  many  states  there  are  statutes  making  a  co-tenant  liable  to  other 
co-tenants  for  waste.  Childs  v.  The  Kansas  City  Ry.  Co.,  117  Mo.  414,  434; 
Hardman  v.  Brown,  77  W.  Va.  478.     1  Stimson,  Am.  St.  Law,  §   1377. 


HENDERSON    V.    EASON  441 

HE:N'DERS0N,  Executor  v.  EASON 
17  Q.  B,  701.    1851. 

Parke,  B.,  now  delivered  the  judgment  of  the  court. ^ 

This  case  was  heard  before  us  at  the  sittings  after  last  Trinity 
Term.  It  is  an  action  of  account  founded  on  the  Statute  4  Ann.  c, 
16,  by  Robert  Eason  against  the  executor  of  his  co-tenant  in  com- 
mon, Edward  Eason.  The  declaration  states:  (His  Lordship  here 
stated  the  substance  of  the  count).  There  is  an  averment  that  Eason 
in  his  lifetime  received  more  than  his  just  share  and  proportion  of 
the  rents,  issues,  and  profits  of  the  said  tenancy,  that  is  to  say  the 
whole  of  the  rents,  issues,  and  profits,  and  had  not  rendered  an 
account  to  the  plaintiff. 

There  were  two  pleas  to  the  declaration :  (His  Lordship  stated  the 
pleas). 

Issue  being  joined  on  these  pleas,  evidence  was  given  that  the  two 
Easons  were  tenants  in  common  in  fee  of  a  messuage  and  farm  of 
above  133  acres  of  land  from  j^ovember,  1833,  to  November,  1838, 
during  which  time  Edward  Eason  occupied  the  whole  on  his  own 
account,  the  plaintiff  occupying  no  part :  that  he  cultivated  the  same 
on  his  own  account  solely,  and  appropriated  the  produce  to  his  own 
use;  and  that  he  cropped  the  farm  in  the  usual  way,  kept  the  usual 
quantity  of  live  and  dead  stock,  and  farmed  well;  and  that  he  re- 
ceived all  the  produce  of  the  farm,  and  sold  it  on  his  own  account. 

On  the  trial,  before  our  Brother  Coleridge,  the  plaintiff's  counsel 
insisted  that  this  evidence  was  conclusive  on  the  first  issue,  and  pre- 
sumptive evidence  on  the  last,  in  favor  of  the  plaintiff:  and  so  the 
learned  judge  held,  in  compliance  with  the  ruling  of  the  Court  of 
Queen's  Bench  on  a  special  case  between  the  same  parties,  reported 
in  12  Queen's  Bench  Reports,  986. 

That  case  was  stated  by  leave  of  a  judge,  in  an  action  brovight  by 
order  of  the  late  Lord  Chancellor.  The  Lord  Chancellor,  we  are 
told,  was  dissatisfied  with  that  proceeding  for  certain  reasons  wholly 
immaterial  to  be  inquired  into  by  us,  and  directed  this  action  to  be 
brought,  in  which  the  important  question  between  the  parties  is  to 
be  settled. 

There  is  no  doubt  as  to  the  law  before  the  Statute  of  4  Ann,  c.  16. 
if  one  tenant  in  common  occupied,  and  took  the  whole  profits,  the 
other  had  no  remedy  against  him  whilst  the  tenancy  in  common  con- 
tinued, unless  he  was  put  out  of  possession,  when  he  might  have  his 
ejectment,  or  unless  he  appointed  the  other  to  be  his  bailiff  as  to 
his  undivided  moiety,  and  the  other  accepted  that  appointment, 
when  an  action  of  account  would  lie,  as  against  a  bailiff  of  the  owner 
of  the  entirety  of  an  estate. 

1  The  statement  of  facts  is  omitted. 


442  HENDERSON    V.    EASON  [CHAP.    VII 

Until  the  Statute  of  Anne  this  state  of  the  law  continued.  That 
Statute  provides,  by  section  27,  that  an  action  of  account  may  be 
brought  and  maintained  by  one  joint  tenant  and  tenant  in  common, 
his  executors  and  administrators,  against  the  other,  for  receiving 
more  than  comes  to  his  just  share  or  proportion,  and  against  the 
executor  and  administrator  of  such  joint  tenant  or  tenant  in  com- 
mon; and  the  auditors  are  authorized  to  administer  an  oath. 

Declarations  framed  on  this  Statute  vary  from  those  at  common 
law,  as  it  is  an  essential  averment  in  them  that  the  defendant  has 
received  more  than  his  share.  This  was  held  in  the  case  of  Wheeler 
V.  Home,  Willes,  208,  and  in  Sturton  v.  Richardson,  13  M.  &  W.  17. 

Under 'the  Statute  of  Anne  he  is  bailiif  only  by  virtue  of  his  re- 
ceiving more  than  his  just  share,  and  as  soon  as  he  does  so,  and  is 
answerable  only  for  so  much  as  he  actually  receives,  as  is  fully  ex- 
plained by  Lord  Chief  Justice  Willes  in  the  case  above  cited.  He  is 
not  responsible,  as  a  bailiff  at  common  law,  for  what  he  might  have 
made  without  his  wilful  default. 

It  is  to  be  observed  that  the  Statute  does  not  mention  lands  or  tene- 
ments, or  any  particular  subject.  Every  case  in  which  a  tenant  in 
common  receives  more  than  his  share  is  within  the  Statute;  and 
account  Avill  lie  when  he  does  receive,  but  not  otherwise.  It  is  to  be 
observed,  also,  that  the  receipt  of  issues  and  profits  is  not  mentioned 
but  simply  the  receipt  of  more  than  comes  to  his  just  share;  and, 
further,  he  is  to  account  when  he  receives,  not  takes,  more  than 
comes  to  his  just  share.  What,  then,  is  a  "  receiving  "  of  more  than 
comes  to  his  just  share,  within  the  meaning  of  that  provision  in 
the  Statute  of  Anne  ? 

It  appears  to  us  that  construing  the  Act  according  to  the  ordinary 
meaning  of  the  words,  this  provision  of  the  Statute  was  meant  to 
apply  only  to  cases  where  the  tenant  in  common  received  money  or 
something  else,  where  another  person  gives  or  pays  it,  which  the 
co-tenants  are  entitled  to  simply  by  reason  of  their  being  tenants 
in  common,  and  in  proportion  to  their  interests  as  such,  and  of 
which  one  receives  and  keeps  more  than  his  just  share  according  to 
that  proportion. 

The  Statute,  therefore,  includes  all  cases  in  which  one  of  two 
tenants  in  common  of  lands  leased  at  a  rent  payable  to  both,  or  of 
a  rent-charge,  or  any  money  payment  or  payment  in  kind,  due  to 
them  from  another  person,  receives  the  whole  or  more  than  his  pro- 
portionate share  according  to  his  interest  in  the  subject  of  the 
tenancy.^     There  is  no  difficulty  in  ascertaining  the  share  of  each, 

1  See  Johnson  v.  Johmon,  38  N.  D.  138;  29  L.  R.  A.  n.  s.  229  note; 
L.  R.  A.  1918  B.  607  note. 

In  the  absence  of  ouster,  a  co-tenant  who  farms  the  land  on  his  own 
account  is  not  liable  to  account,  for  profits  to  the  others.  Bird  v.  Bird.  15 
Fla.  424;  Sagen  v.  Gudmanmn,  164  Iowa  440,  448.  449;  Kcan  v.  CoimeUy, 
25  Minn.  222;  Webster  v.  Calej,  47  N.  H.  289.    And  see  LeBarron  v.  Bahcock, 


HENDERSON    V.    EASON  443 

and  determining  when  one  has  received  more  than  his  just  share: 
and  he  becomes,  as  to  that  excess,  the  bailiff  of  the  other,  and  must 
account. 

But  when  we  seek  to  extend  the  operation  of  the  Statute  beyond 
the  ordinary  meaning  of  its  words,  and  to  apply  it  to  cases  in  which 
one  has  enjoyed  more  of  the  benefit  of  the  subject,  or  made  more 
by  its  occupation,  than  the  other,  we  have  insuperable  difficulties  to 
encounter. 

There  are  obviously  many  cases  in  which  a  tenant  in  common  may 
occupy  and  enjoy  the  land  or  other  subject  of  tenancy  in  common 
solely,  and  have  all  the  advantage  to  be  derived  from  it,  and  yet  it 
would  be  most  unjust  to  make  him  pay  anything.  For  instance,  if 
a  dwelling  house,  or  barn,  or  room,  is  solely  occupied  by  one  tenant 
in  common,  without  ousting  the  other,  or  a  chattel  is  used  by  one  co- 
tenant  in  common,  nothing  is  received;  and  it  would  be  most  inequi- 
table to  hold  that  he  thereby,  hy  the  simple  act  of  occupation  or  use, 
without  any  agreement,  should  be  liable  to  pay  a  rent  or  anything 
in  the  nature  of  compensation  to  his  co-tenants  for  that  occupation 
or  use  to  which  to  the  full  extent  to  which  he  enjoyed  it  he  had 
a  perfect  right.  It  appears  impossible  to  hold  that  such  a  case  could 
be  within  the  Statute ;  and  an  opinion  to  that  effect  was  expressed  by 
Lord  Cottenham  in  M'Mahon  v.  BurcheU,  2  Phillips's  Eep.  134. 
Such  cases  are  clearly  out  of  the  operation  of  the  Statute. 

Again,  there  are  many  cases  where  profits  are  made,  and  are 
actually  taken,  by  one  co-tenant,  and  yet  it  is  impossible  to  say  that 
he  has  received  more  than  comes  to  his  just  share.  For  instance, 
one  tenant  employs  his  capital  and  industry  in  cultivating  the  whole 
of  a  piece  of  land,  the  subject  of  the  tenancy,  in  a  mode  in  which 
the  money  and  labor  expended  greatly  exceed  the  value  of  the  rent 


122  N.  Y.  153.  Contra,  Schuster  v.  Schuster,  84  Neb.  98;  Ilaydcn  v.  Merrill, 
44  Vt.  336.  See  Gulf  Red  Cedar  Co.  v.  Crenshaw,  188  Ala.  606;  Huff  v. 
MacDonald,  22  Ga.  131;  Cutler  v.  Currier,  54  Me.  81;  Ayotte  v.  Nadeau,  32 
Mont.  498;   West  v.  Weyer,  46  Ohio  St.  66;  Adkins  v.  Adkins,  117  Va.  445. 

Nor,  in  the  absence  of  ouster,  i.-^  the  co-tenant  e.xdu^ivcly  in  possession 
liable  to  the  others  for  use  and  occupation.  Newbold  v.  Smart,  67  Ala.  326; 
Crane  v.  Waggoner,  27  Ind.  52;  Brown  v.  Thurstin,  83  Kan.  125;  Israel  v. 
Israel,  30  Md.  120;  Peck  v.  Carpenter,  7  Gray  (Mass.)  283;  Moseley  v. 
Moseley,  132  N.  E.  (Mass.)  418;  Owings  v.  Owings,  150  Mich.  609.  Compare 
Ilamhy  v.  Wall,  48  Ark.  135;  Buckelew  v.  Snedecker,  27  N.  J.  Eq.  82;  Griffin 
v.  Griffin,  82  S.  C.  256.  Contra,  McParland  v.  Larkin,  155  III.  84;  Walker  v. 
Williams,  84  Miss.  392;  Gage  v.  Gage.  66  N.  H.  282.  See  Woolhy  v.  Schroder, 
116  III.  28;  Burkley  v.  Burkley,  266  Pa.  338;  Knowles  v.  Harris.  5  R.  I.  402; 
Ward  V.  Ward,  40  W.  Va.  611. 

Authorities  are  collected  in  29  L.  R.  A.  n.  s.  224;  L.  R.  A.  1918  B.  606. 

A  co-tenant  who  is  liable  for  rents  received  may  be  sued  in  assumpsit. 
Brigham  v.  Evelcth,  9  Mass.  538.  See  also  Richardson  v.  Richard.^on,  Tl 
Me.  403;  Hudson  v.  Coe,  79  Me.  83;  Johnson  v.  John.«on.  38  N.  D.  138.  146; 
Freeman,  Cotenancy.  §§  280-285.  Contra,  Thoma.^  v.  Thomas,  5  Exch.  28. 
And  see  Enterprise  Oil  Co.  v.  National  Transit  Co.,  172  Pa.  421. 


444  HENDERSON    V.   EASON  [CHAP.   VIT 

or  compensation  for  tho  mero  occupation  of  the  land;  in  raising 
hops,  for  example,  which  is  a  very  liazardons  adventure.  He  takes 
the  whole  of  the  crops:  and  is  he  to  be  accountable  for  any  of  the 
profits  in  such  a  case,  when  it  is  clear  that,  if  the  speculation  had 
been  a  losing  one  altogether,  he  could  not  have  called  for  a  moiety 
of  the  losses,  as  he  would  have  been  enabled  to  do  had  it  been  so 
cultivated  by  the  mutual  agreemnt  of  the  co-tenants?  The  risk  of 
the  cultivation,  and  the  profits  *and  loss,  are  his  own ;  and  what  is 
just  with  respect  to  the  very  uncertain  and  expensive  crop  of  hops 
is  just  also  with  respect  to  all  the  produce  of  the  land,  the  frudus 
industriales,  which  are  raised  by  the  capital  and  industry  of  the 
occupier,  and  would  not  exist  without  it.  In  taking  all  the  prod- 
uce he  cannot  be  said  to  receive  more  than  his  just  share  and  pro- 
portion to  which  he  is  entitled  as  a  tenant  in  common.  He  receives 
in  truth  the  return  for  his  own  labor  and  capital,  to  which  his  co- 
tenant  has  no  right. 

In  the  case  before  Lord  North  in  Skinner  (Anonymous  in  Chan- 
cery, Skinn.  230,)  in  which  it  is  said  that,  if  one  of  four  tenants  in 
common  stock  land  and  manage  it,  the  rest  shall  have  an  account 
of  the  profits,  but  if  a  loss  come,  as  of  the  sheep,  they  shall  bear  a 
part,  it  is  evident,  from  the  context.  Lord  North  is  speaking  of  a 
case  where  one  tenant  in  common  manages  by  the  mutual  agreement 
of  all  for  their  common  benefit;  for  he  gives  it  as  an  illustration  of 
the  rights  of  a  part  owner  of  a  ship  to  an  account  when  the  voyage 
is  undertaken  by  his  consent,  expressed  or  implied. 

Where  the  natural  produce  of  the  land  is  augmented  by  the  capital 
and  industry  of  the  tenant,  grass,  for  instance,  by  manuring  and 
draining,  and  the  tenant  takes  and  sells  it,  or  where,  by  feeding  his 
cattle  with  it,  he  makes  a  profit  by  it,  the  case  seems  to  us  to  be 
neither  within  the  words  or  spirit  of  the  Act,  though  there  are  not 
cases  of  frudus  industriales  in  either  case. 

It  may  be  observed,  however,  that  the  evidence  stated  in  the  bill 
of  exceptions  does  not  raise  either  of  these  points. 

We  therefore  think  that,  upon  the  evidence  set  out  in  this  case, 
there  was  nothing  to  warrant  the  jury  in  coming  to  the  conclusion 
that  the  defendant  received  more  than  his  just  share  within  the 
meaning  of  the  Act;  and  that  the  direction  of  the  learned  judge  as 
to  the  second  issue  was  therefore  wrong.  And  we  also  think  that 
there  was  no  conclusive  or  sufficient,  or  indeed  any,  evidence  that  he 
had  the  care  and  management  of  the  farm  for  their  common  profit, 
as  averred  in  the  declaration.  We  therefore  think  that  there  should 
be  Judgment  to  reverse  the  judgment  of 

Q.  B.,  and  for  a  venire  de  novo. 


DEWING    V.    DEWING  445 


DEWING  V.  DEWING 
165  Mass.  230.    1895. 

Two  ACTIONS  OF  CONTRACT,  each  upon  an  account  annexed,  for 
money  had  and  received.  The  cases  were  tried  together  in  the 
Superior  Court,  without  a  jury,  before  Dunbar,  J.,  who  found  for 
the  defendant  in  each  case;  and  the  plaintiffs  alleged  exceptions. 
The  facts  appear  in  the  opinion. 

The  case  was  argued  at  the  bar  in  November,  1895,  and  after- 
wards was  submitted  on  the  briefs  to  all  the  judges. 

Holmes,  J.  These  are  actions  for  money  had  and  received,  brought 
by  two  tenants  in  common  against  a  third,  to  recover  their  share  of 
the  net  profits  realized  by  the  defendant  in  carrying  on  a  garden 
farm.  We  assume  without  deciding,  as  the  plaintiffs  contend,  that 
the  actions  are  maintainable  in  Massachusetts  in  this  form,  and  that 
the  items  on  their  side  of  the  account  stated  by  the  auditor  are  all 
properly  there.  St.  4  &  5  Anne,  c.  16,  §  27.  Jones  v.  Harradcn, 
9  Mass.  540  n.  Shepard  v.  Richards,  2  Gray,  424,  427,  428.  The 
only  questions  necessary  to  be  considered  are  whether,  as  a  matter 
of  substantive  law,  or  at  least  under  the  answer,  which  was  a  gen- 
eral denial,  the  defendant  should  have  been  denied  any  allowance 
for  his  services  and  board  and  the  use  of  his  animals  and  utensils 
in  realizing  the  money  received  by  him,  and  whether  the  defendant 
can  recover  a  proportionate  share  of  the  taxes  under  a  declaration 
in  set-off. 

The  question  of  pleading  raises  no  difficulty.  It  is  true  that 
this  is  not  a  mutual  account  by  contract  between  the  parties,  as 
in  Goldthvait  v.  Day,  149  Mass.  185,  but  the  principle  is  the  same. 
The  plaintiff  has  to  prove,  in  the  language  of  the  statute,  that  the 
defendant  has  received  "  more  than  comes  to  his  just  share  or  pro- 
portion," and  that  can  be  determined  only  after  making  the  defendant 
all    just    allowances.     Shepard    v.    Richards,    2    Gray,    424,    427. 

We  are  of  opinion,  further,  that  the  substantive  law  does  not 
forbid  the  allowances  in  question.  It  is  true  that  there  is  no 
contract  between  the  parties.  We  assume  that  tlie  defendant  could 
not  have  recovered  for  any  part  of  his  services  if  he  had  been  the 
])laintiff.  But  when  he  is  asked  to  account,  it  is  plain  that  justice 
may  require  an  allowance  for  the  labor  which  he  has  contributed, 
for  the  same  reasons  on  which  it  is  admitted  that  he  should  be  al- 
lowed for  cash  paid  out.  Tf  the  former  item  is  excluded,  it  is  by 
an  arbitrary  rule.  No  sucli  rule  is  found  in  the  words  of  the  statute. 
On  the  contrary,  the  words  "just  share"  would  imply  tliat  his 
share  is  to  be  determine(l  ])y  justice,'  not  by  a  fiction  or  a  techni- 
cality. In  this  Commonwealth  it  now  is  settled,  that  even  in  the 
case  of  a  surviving  partner  continuing  to  subject  the  assets  of  the 


446  DEWING    V.    DEWING  [CHAP.    VII 

firm  to  the  perils  of  business,  th(n-e  is  no  inflexible  rule  against 
allowing  bini  for  bis  services  if  the  representatives  of  tbe  deceased 
partner  elect  to  take  a  share  of  the  profits.  Robinson  v.  Simmons, 
146  Mass.  167,  176.  A  fortiori  is  this  true  in  the  case  of  a  co-ten- 
ancy of  land,  where  one  tenant  by  his  labor  has  realized  the  proceeds 
in  which  the  others  claim  a  share.  The  same  principle  applies  to 
the  allowance  for  animals  and  utensils,  Shepard  v.  Richards,  2  Gray, 
424,  427.  Ruffners  v.  Lewis,  7  *Leigh,  720,  738,  743,  744.  Gayle  v. 
Johnston,  80  Ala.  395,  401,  402.  The  construction  of  the  statute 
in  England  seems  to  be  in  accordance  with  our  views.  Henderson 
V.  Eason,  17  Q.  B.  701,  720,  721. 

If  the  foregoing  alloAvances  are  made,  the  shares  of  the  profits 
coming  to  the  plaintiffs  are  less  than  their  respective  shares  of 
the  taxes.  It  is  urged  that  in  any  event  the  defendant  cannot 
recover  anything  from  the  plaintiffs,  and  that  the  judge  erred  in 
finding  in  favor  of  the  defendant  for  the  unpaid  proportion  of 
taxes.  Unlike  the  other  items,  the  claim  for  contribution  for  taxes 
paid  is  one  which  can  be  enforced  by  suit  on  the  part  of  the  tenant 
who  has  paid  them.  Dickinson  v.  WiUiams,  11  Cush.  258.  Kites  v. 
Church,  142  Mass.  586.  It  does  not  lose  this  character  by  being 
declaimed  on  in  set-off.^  True,  it  is  brought  into  a  common  account 
with  items  which  cannot  be  recovered  for  except  so  far  as  may  be 
necessary  in  order  to  extinguish  the  plaintiff's  claim,  but  otherwise 
it  remains  a  distinct  cause  of  action.  The  surplus  which  the  de- 
fendant recovers  is  not  the  balance  of  an  account  most  of  the  items 
of  which  cannot  be  recovered  for;  it  is  the  claim  for  taxes  alone, 
so  far  as  that  claim  has  not  been  satisfied  by  the  sum  otherwise  due 
to  the  plaintiffs. 

Looking  at  the  substantive  question  of  policy  involved,  a  ma- 
jority of  the  court  do  not  think  that  it  would  be  just  to  lay 
down  an  absolute  rule  of  law  that  the  expenditures  should  be  mar- 
shalled so  that  the  taxes  should  be  paid  first  out  of  gross  profits, 
and  the  balance  only  applied  to  the  defendant's  labor,  etc.  This 
would  put  a  co-tenant  who  had  made  an  honest  effort  to  improve 
the  property  at  a  disadvantage  as  compared  with  one  who  simply 
had  let  it  lie  fallow.  In  the  latter  case  the  claim  for  taxes  would 
be  indisputable.  It  seems'  unfair  to  say  that  one  w^ho  tries  to 
make  a  gain  in  which  all  will  share  if  he  succeeds,  necessarily  shall 
be  in  a  worse  position  unless  he  succeeds.         Exceptions  overruled. 

1  And  see  Murray  v.  Ryder,  115  Atl.  (Me.)  256. 


CALVERT    V.    ALDRICH  447 

CALVERT  V.  ALDEICH 
99  Mass.  74.    1868. 

Contract.  The  defendant  filed  a  declaration  in  set-off  on  an 
account  annexed  for  two  fifths  of  the  cost  of  repairs  of  a  machine 
shop  in  Lowell;  and  the  only  question  in  dispute  in  the  case  was 
the  liability  of  the  plaintiff  for  any  portion  of  such  cost. 

At  the  trial  in  the  superior  court,  before  Reed,  J.,  these  facts 
appeared :  Calvert  and  Aldrich  owned  the  machine  shop  and  the 
machinery  therein  in  the  proportion  of  two  fifths  and  three  fifths 
respectively,  as  tenants  in  common;  and  Aldrich,  having  agreed 
to  pay  to  Calvert  a  yearly  rent  for  such  occupation  of  Calvert's 
two  fifths,  was  in  occupation  thereof  when  the  building  caught  fire, 
and  the  roof,  windows  and  one  of  the  floors  were  so  burnt  that  the 
machinery  was  exposed  to  injury  by  the  weather.  Calvert  at  this 
time  was  in  Europe,  but  had  an  agent  in  Lowell,  to  whom  Aldrich 
immediately  represented  the  importance  of  repairing  the  building. 
The  agent  confessed  such  importance,  but  replied  that  he  had  no 
authority  from  Calvert  to  sanction  any  repairs,  and  Avrote  to  Calvert 
for  instructions,  who  replied,  declining  to  make  any  repairs  upon 
the  building.  This  letter  the  agent  showed  to  Aldrich,  who  mean- 
while had  caused  the  building  to  be  repaired.  After  the  return 
of  Calvert,  Aldrich  showed  him  the  repairs  and  stated  to  him  the 
expenses  thereof,  and  asked  him  to  contribute  his  proportion  of 
the  same.  But  Calvert,  not  disputing  that  the  expenses  were  reason- 
able, contended  that  he  was  not  liable  for  any  portion  of  them,  and 
refused  to  contribute. 

On  these  facts  the  judge  ruled  that  the  defendant  could  not  re- 
cover on  his  account  in  set-off,  and  ordered  judgment  for  the 
plaintiff;  and  the  defendant  alleged  exceptions. 

Foster,  J.  The  issue  in  this  action  is  on  an  account  of  one 
cotenant  in  common  against  another  to  recover  from  the  defend- 
ant in  set-off  part  of  the  cost  of  certain  needful  repairs  made  by 
the  plaintiff  in  set-off  upon  the  common  property.  It  is  not 
founded  upon  any  contract  between  the  parties,  but  upon  a  supposed 
legal  obligation  which,  if  its  existence  Avere  established,  the  law 
would  imply  a  promise  to  fulfil. 

The  doctrine  of  the  common  law  on  this  subject  is  stated  by 
Lord  Coke  as  follows:  "If  two  tenants  in  common  or  joint  tenants 
be  of  an  house  or  mill,  and  it  fall  in  decay,  and  the  one  is  Avilling 
to  repair  the  same,  and  the  other  will  not,  he  that  is  willing  shall 
have  a  writ  de  reparatione  faciendd,  and  the  writ  saith  ad  repara- 
tiot^em.  ef  susfentafionem  ejusdem  domus  teneantur,  whereby  it 
appeareth  that  owners  are  in  that  case  bound  pro  bono  publico  to 
maintain  houses  and  mills  which  arc  for  habitation  and  use  of 
men."  Co.  Lit.  200  h:  lb.  54  ]>.  And  in  another  place  he  says: 
"  If  there  be  two  joint  tenants  of  a  wood  or  arable  land,  the  one  has 


448  CALVERT    V.   ALDRICH  [CHAP.    VII 

no  remedy  against  the  other  to  make  inclosure  or  reparations  for 
safeguard  of  the  wood  or  corn,"  but  if  there  be  two  joint  tenants 
of  a  house,  the  one  shall  have  his  writ  dr  reparatione  facicndd  against 
the  other.  This  is  said  to  be  because  of  "  the  preeminence  and 
privilege  which  the  law  gives  to  houses  which  are  for  men's  habi- 
tation."    Bowles's  case,  11  Co.  82. 

In  Carver  v.  Miller,  4  Mass.  561,  it  was  doubted  by  Chief  Justice 
Parsons  whether  these  maxims,  of  the  common  law,  as  applied  to 
mills,  are  in  force  here,  especially  since  the  provincial  statute  of 
7  Anne,  c.  1,  revised  by  St.  1795,  c.  74. 

In  Loring  v.  Bacon,  4  Mass.  575,  the  plaintiff  was  seised  in  fee 
of  a  room  and  the  cellar  under  it,  and  the  defendant  of  the  chamber 
overhead  and  of  the  remainder  of  the  house;  the  roof  was  out  of 
repair;  the  defendant,  being  seasonably  requested,  refused  to  join 
in  repairing  it;  and  thereupon  the  plaintiff  made  the  necessary 
repairs,  and  brought  assumpsit  to  recover  from  the  defendant  his 
proportion  of  their  cost.  This,  it  will  be  observed,  was  not  a  case  of 
tenancy  in  common,  but  of  distinct  dwelling-houses,  one  over  the 
other.  Chief  Justice  Parsons  said :  "  If  there  is  a  legal  obligation 
to  contribute  to  these  repairs,  the  law  will  imply  a  promise.  We 
have  no  statute  nor  any  usage  on  the  subject,  and  must  apply  to 
the  common  law  to  guide  us."  "  Upon  a  very  full  research  into 
the  principles  and  maxims  of  the  common  law,  we  cannot  find  that 
any  remedy  is  provided  for  the  plaintiff."  It  was  not  absolutely 
decided  that  an  action  on  the  case  would  not  lie,  but  the  intima- 
tions of  the  court  on  the  subject  were  such  that  no  further  attempt 
appears  to  have  been  made.  The  relations  between  tenants  in 
common  were  not  actually  involved  in  this  case,  and  the  remarks 
touching  the  writ  de  reparatione  were  only  incidental  and  by  way 
of  illustration. 

Doane  v.  Badger,  12  Mass.  65,  was  an  action  on  the  case.  The 
plaintiff  had  a  right  to  use  a  well  and  pump  on  the  defendant's 
land;  and  the  defendant  had  removed  the  pump  and  built  over  the 
well,  thereby  depriving  the  plaintiff  of  the  use  of  the  water.  The 
judge  before  whom  the  case  was  tried  had  instructed  the  jury  that 
the  defendant,  by  the  terms  of  a  deed  under  which  he  claimed,  was 
bound  to  keep  the  well  and  pump  in  repair,  although  they  were 
out  of  repair  when  he  purchased,  and,  without  any  previous  notice 
or  request,  was  liable  in  damages  for  the  injury  the  plaintiff  had 
sustained  by  his  neglect  to  make  repairs.  The  court  held  that  no 
such  evidence  was  admissible  under  the  declaration,  the  cause  of 
action  stated  being  a  misfeasance,  and  the  proof  offered  being  of  a 
nonfeasance  only;  also,  that  a  notice  and  request  were  indispensable 
before  any  action  could  be  maintained.  Mr.  Justice  Jackson  in 
delivering  the  opinion  made  some  general  observations,  unnecessary 
to  the  decision  of  the  cause,  the  correctness  of  which  requires  a  par- 
ticular examination.     He   said   that  the   action  on   the  case   seems 


CALVERT    V.    ALDRICH  449 

to  be  a  substitute  for  tbe  old  writ  cle  rcparaiione  faciendd'^  between 
tenants  in  common,  and  oould  not  be  brought  until  after  a  request 
and  refusal  to  join  in  nuiking  the  repairs.  He  added:  "From  the 
form  of  the  writ  in  tlie  register,  it  seems  that  the  plaintiff,  before 
bringing  the  action,  had  repaii'ed  the  house,  and  was  to  recover  the 
defendant's  proportion  of  the  expense  of  those  repairs.  The  writ 
concludes,  '  in  ipsius  dispendium  non  modicum  et  gravamen.'  It 
is  clear  until  he  have  made  the  repairs  he  cannot  in  any  form  of 
action  recover  anything  more  than  for  his  loss  as  of  rent,  &c.,  while 
the  house  remains  in  decay.  For  if  he  should  recover  the  sum 
necessary  to  make  the  repairs,  there  would  be  no  certatnty  that  he 
would  apply  the  money  to  that  purpose."  Mumford  v.  Brown, 
6  Cowen  475,  a  per  curiam  opinion  of  the  supreme  court  of  jS^ew 
York,  and  Cojjin  v.  Heath,  6  Met.  80,  both  contain  obiter  dicta 
to  the  same  effect,  apparently  founded  upon  Doane  v.  Badger,  with- 
out further  research  into  the  ancient  law.  If  it  were  true  that 
the  writ  de  reparatione  was  brought  by  one  co-tenant,  after  he  had 
made  repairs,  to  recover  of  his  co-tenant  a  due  proportion  of  the 
expense  thereof,  there  would  certainly  be  much  reason  for  holding 
an  action  on  the  case  to  be  a  modern  substitute  for  the  obsolete 
writ  de  reparatione.  But  all  the  Latin  forms  of  the  writ  in  the 
Register,  153,  show  that  it  was  brought  before  the  repairs  were 
made,  to  compel  them  to  be  made  under  the  order  of  court.  Indeed, 
this  is  implied  in  the  very  style  by  wdiich  the  writ  is  entitled,  de 
reparatione  faciendd,  viz:  of  repairs  to  be  made;  the  future  par- 
ticiple faciendd  being  incapable  of  any  other  meaning.  This  also 
appears  in  Fitzherbert,  N.  B.  127,  where  the  writ  between  cotenants 
of  a  mill  is  translated ;  the  words,  m  ipsius  dispendium  non  modicum 
et  gravamen,  (quoted  by  Judge  Jackson,)  being  correctly  rendered, 
"  to  the  great  damage  and  grievance  of  him,"  the  said  plaintiff. 
Fitzherbert  says :  "  The  writ  lieth  in  divers  cases ;  one  is,  where 
there  are  three  tenants  in  common  or  joint  or  pro  indiviso  of  a  mill 
or  a  house,  kc,  which  falls  to  deca}',  and  one  will  repair  but  the 
other  will  not  repair  the  same;  he  shall  have  this  writ  against  them." 
In  the  case  of  a  ruinous  house  which  endangers  the  plaintiff's  ad- 
joining house,  and  in  that  of  a  bridge  over  which  the  plaintiff  has 
a  passage,  which  the  defendant  ought  to  repair,  but  which  he  suffers 
to  fall  to  decay,  the  words  of  the  precept  are,  "  Command  A.  that," 
&e.,  "  he,  together  with  B.  and  C,  his  partners,  cause  to  he  repaired." 
The  cases  in  the  Year  Books  referred  to  in  the  margin  of  Fitzherbert 
confirm  the  construction  which  w^e  regard  as  the  only  one  of  which 
the  forms  in  that  author  are  susceptible,  namely,  that  the  writ  de 
reparatione  was  a  process  to  compel  repairs  to  be  made  under  the 
order  of  court.  There  is  nothing  in  them  to  indicate  that  an  action 
for  damages  is  maintainable  by  one  tenant  in  common  against  an- 

1  See  Ward  v.  Ward,  40  W.  Va.  611,  617;  52  Am.  St.  Rep.  934  note. 


450  CALVERT    V.    ALDRICH  [CHAP.    VII 

Other  because  the  defendant  will  not  join  with  the  plaintiff  in  re- 
]>airiug  the  common  property.  In  a  note  to  the  form  in  the  case 
of  a  bridge,  it  is  said  in  Fitzherbert:  "  In  this  writ  the  party  recovers 
his  damages,  and  it  shall  be  awarded  that  the  defendant  repair, 
and  that  he  be  distrained  to  do  it.  So  in  this  writ  he  shall 
have  the  view  contra,  if  it  be  but  an  action  on  the  case  for  not  repair- 
ing, for  there  he  shall  recover  but  damages."  There  is  no  doubt 
that  an  action  on  the  case  is  piaintainable  to  recover  damages  in 
cases  where  the  defendant  is  alone  bound  to  make  repairs  for 
the  benefit  of  the  plaintiff  without  contribution  on  the  part  of  the 
latter,  and  has  neglected  and  refused  to  do  so.  See  Tenant  v. 
Goldivin,  6  Mod.  311;  S.  C.  2  Ld.  Haym.  1089;  1  Salk.  21,  360. 

The  difficulty  in  the  way  of  awarding  damages  in  favor  of  one 
tenant  in  common  against  his  cotenant  for  neglecting  to  repair  is, 
that  both  parties  are  equally  bound  to  make  the  repairs,  and  neither 
is  more  in  default  than  the  other  for  a  failure  to  do  so.  Upon  a 
review  of  all  the  authorities,  we  can  find  no  instance  in  England 
or  this  country  in  which,  between  cotenants,  an  action  at  law  of 
any  kind  has  been  sustained,  either  for  contribution  or  damages, 
after  one  has  made  needful  repairs  in  which  the  other  refused  to 
join.  We  are  satisfied  that  the  law  was  correctly  stated  in  Converse 
v.  Ferre,  11  Mass.  325,  by  Chief  Justice  Parker,  w^ho  said :  "  At 
common  law  no  action  lies  by  one  tenant  in  common,  who  has  ex- 
pended more  than  his  share  in  repairing  the  common  property, 
against  the  deficient  tenants,  and  for  this  reason  our  legislature  has 
provided  a  remedy  applicable  to  mills."  The  writ  de  re-paratione 
faciendd  brought  before  the  court  the  question  of  the  reasonableness 
of  the  repairs  proposed,  before  the  expenditures  were  incurred. 
It  seems  to  have  been  seldom  resorted  to ;  perhaps  because  a  division 
of  the  common  estate  would  usually  be  obtained  where  the  owners 
were  unable  to  agree  as  to  the  necessity  or  expediency  of  repairs. 
Between  tenants  in  common,  partition  is  the  natural  and  usually 
the  adequate  remedy  in  every  case  of  controversy.  This  is  the 
probable  explanation  of  the  few  authorities  in  the  books,  and  of  the 
obscurity  in  which  we  have  found  the  whole  subject  involved.  But 
if  we  have  fallen  into  any  error  in  our  examination  of  the  original 
doctrines  of  the  common  law  of  England,  it  is  at  least  safe  to  con- 
clude that  no  action  between  tenants  in  common  for  neglecting  or 
refusing  to  repair  the  common  property,  or  to  recover  contribution 
for  repairs  made  thereon  by  one  without  the  consent  of  the  other, 
has  been  adopted  among  the  common  law  remedies  in  Massachusetts. 

This  result  is  in  accordance  with  the  rulings  at  the  trial. 

Exceptions  overruled.^ 

1  Merchants  Bank  oj  Florence  v.  Foster,  124  Ala.  696;  Leigh  v.  Dickeson, 
12  Q.  B.  D.  194,  accord. 

But  see  Fowler  v.  Fowler,  50  Conn.  256;  Cooper  v.  Brown,  143  Iowa  482; 
Manhattan  Co.  v.  White.  48  Mont.  565;  Mumford  v.  Brown.  6  Cow.  (N.  Y.) 
475;  Bcaty  v.  Bordwell,  91  Pa.  438;  Duplcs.^e  v.  Haskell,  89  Vt.  166. 


PICKERING    V.    PICKERING  451 

PICKERING  V.  PICKERING 
63  N.  H.  468.    1885. 

Bill  in  equity,  for  an  accounting  between  tenants  in  common. 
The  defendant  claimed  to  be  allowed  for  necessary  repairs  made  by 
him  upon  the  premises  without  notice  to  the  plaintiff. 

BiN(}HAM,  J.  The  plaintiff  seeks  for  an  accounting,  and  to  charge 
the  defendant  for  the  rents  and  income  of  lands  and  buildings  there- 
on. The  parties  are  tenants  in  common.  The  defendant  has  had 
the  possession  and  income  of  the  property  since  December  27,  1883, 
and  has  in  that  time  expended  $370  in  necessary  repairs  that  mate- 
rially increased  the  value  of  the  buildings  and  the  income,  and  claims 
to  be  allowed  for  the  same  in  the  accounting.  The  plaintiff  had  no 
notice  of  the  repairs,  and  was  not  requested  to  join  in  making  them. 

If  we  are  to  consider  it  settled  at  common  law  that  one  tenant  in 
common  cannot  recover  of  his  co-tenant  a  contribution  for  necessary 
repairs,  where  there  is  no  agreement  or  request  or  notice  to  join  in 
making  them,  or  excuse  for  a  notice  not  being  given  to  join  (Stevens 
V.  Thompson,  17  N.  H.  103,  111;  Wigging  v.  Wiggin,  43  N".  H.  561, 
568),  because  both  parties,  until  this  is  done,  are  equally  in  fault, 
one  having  as  much  reason  to  complain  as  the  other  (Mum ford  v. 
Brown,  6  Cow.  475-477;  Kidder  v.  Rixford,  16  Vt.  169-172;  4  Kent 
Com.  371;  Doane  v.  Badger,  12  Mass.  65-70;  Calvert  v.  Aldrich, 
99  Mass.  78),  it  does  not  follow  that  in  this  proceeding  for  an  equi- 
table accounting  for  the  income,  a  part  of  which  i's  produced  by  the 
repairs,  the  defendant  may  not  be  allowed  for  them.  There  is  a 
wide  difference  between  a  right  of  action  at  common  law  to  recover 
a  contribution  for  repairs,  and  a  right  to  have  them  allowed  out  of 
the  income,  which  exists  in  part  through  their  having  been  made. 
In  the  first  case,  the  party  makes  them  at  his  will  on  the  common 
property  without  the  consent  or  knowledge  of  his  co-tenant,  while 
in  the  last  the  co-tenant  recognizes  the  existence  of  the  repairs,  that 
they  have  materially  increased  the  income,  but  demands  the  increase 
and  refuses  to  allow  for  the  repairs.  The  objection,  that  no  privity, 
no  joint  knowledge,  no  authority  existed,  is  in  equity  and  good 
conscience  waived  when  tlie  entire  income  is  demanded.  It  is  not 
unlike  the  ratification  of  the  acts  of  an  assumed  agent:  it  relates 
biU'k  to  the  time  of  making  the  repairs,  nd  makes  the  plaintiff  a 
privy  from  tlic  beginning.  He  cannot  cdaini  the  repairs  and  the 
income,  and  ('quital)ly  ignore  the  expense  of  making  them. 

In  Monro  v.  Cable,  1  Johns.  Ch.  385,  a  bill  for  the  redemption  of 
a  mortgag(\  it  was  decided  that  the  mortgagee  should  not  be  charged 
for  rents  and  j^rofits  arising  exclusively  from  repairs  made  by  him. 

In  Jacl-son  v.  Looinis,  4  Cow.  168,  an  action  of  tres])ass  for  mesne 
profits  against  a  bona  fide  purchaser,  it  was  held  that  he  should  be 
allowed  against  the  plaintiff,  in  mitigation  of  damages,  the  value  of 


452  PICKERING    V.    PICKERING  [CHAP.    VII 

permanent  improvements,  made  in  good  faith,  to  the  extent  of  the 
rents  and  profits  claimed  by  the  plaintiff.  Green  v.  Biddle,  8 
Wheat  1. 

In  Rathhun  v.  Colton,  15  Pick.  472,  485,  it  was  decided  that  when 
the  rent  of  a  trust  estate  is  increased  in  consequence  of  improvements 
made  by  the  trustee,  the  beneficiary  may  be  put  to  his  election,  either 
to  allow  the  trustee  the  expense  of  such  improvements,  or  be  deprived 
of  the  increase  of  rent  obtained  by  means  thereof;  that  the  question 
was  not  whether  the  trustee  has  a  right  to  make  a  charge  for  the 
improvements,  but  whether  the  plaintiifs  were  entitled  to  receive  any 
benefit  for  them,  they  refusing  to  contribute  their  share  towards  the 
expense. 

It  seems,  however,  that  courts  of  equity  have  not  confined  the  doc- 
trine of  compensation  for  repairs  and  improvements  to  cases  of  agree- 
ment or  of  joint  purchases,  but  have  extended  it  to  other  cases  where 
the  party  making  the  repairs  and  improvements  has  acted  in  good 
faith,  innocently,  and  there  has  been  a  substantial  benefit  conferred 
on  the  owner,  so  that  in  equity  and  right  he  ought  to  pay  for  the 
same.  2  Story  Eq.  Jur.  §§  1236,  1237,  799  b;  Coffin  v.  Heath,  6 
Met.  76,  80.  And  in  2  Story  Eq.  PI.  §  799  b,  n.  1,  it  is  said,  —  "  In 
cases  where  the  true  owner  of  an  estate,  after  a  recovery  thereof 
at  law  from  a  bona  fide  possessor  for  a  valuable  consideration,  with- 
out notice  seeks  an  account  in  equity  as  plaintiff  against  such  pos- 
sessor for  the  rents  and  profits,  it  is  the  constant  habit  of  courts 
of  equity  to  allow  such  possessor  (as  defendant)  to  deduct  therefrom 
the  full  amount  of  all  meliorations  and  improvements  which  he  has 
beneficially  made  upon  the  estate,  and  thus  to  recoup  them  from  the 
rents  and  profits.  .  .  .  So,  if  the  true  owner  of  an  estate  holds 
only  an  equitable  title  thereto,  and  seeks  the  aid  of  a  court  of  equity 
to  enforce  that  title,  the  court  will  administer  that  aid  only  upon  the 
terms  of  making  compensation  to  such  bona  fide  possessor  for  the 
amount  of  his  meliorations  and  improvements  of  the  estate  beneficial 
to  the  owner."  This  is  on  the  old,  established  maxim  in  equity  juris- 
prudence, that  he  who  seeks  equity  must  do  equity.  Han  nan  v. 
Osborn,  4  Paige  Ch.  336;  Deck's  Appeal,  57  Penn.  Gt.  468,  472;  Pey- 
ton V.  Smith,  2  Dev.  &  Bat.  Eq.  325,  349 ;  Hibbert  v.  Cool-e,  1  Sim. 
v^  S.  552. 

The  sum  of  $370  for  the  repairs  may  be  deducted  from  the  income, 
if  it  amounts  to  that  sum :  if  not,  then  to  cancel  the  income,  whatever 
it  may  be. 

The  claim  for  insurance  should  be  disallowed.  It  does  not  appear 
that  it  was  procured  for  the  plaintiff,  or  in  her  interest,  or  with  her 
knowledge,  or  that  she  has  ever  received  or  accepted  any  benefit 
arising  from  it.  Case  discharged. 

Blodgett,  J.,  did  not  sit ;  the  others  concurred.^ 

1  Compare  Alexander  v.  Ellison,  79  Ky.  148;  Hotopp  v.  Morrison  Lodge, 
no  Ky.  987. 


PARTITION  453 

Lit.  §  247.  Also,  tliore  is  another  partition.  As  if  there  be  four 
parceners,  and  they  will  not  agree  to  a  partition  to  be  made  between 
them,  then  the  one  may  have  a  writ  of  partitione  facienda  against 
the  other  three,  or  two  of  them  may  have  a  writ  of  partitione  facienda 
against  the  other  two,  or  three  of  them  may  have  a  writ  of  parti- 
tione facienda  against  the  fourth,  at  their  election. 

Lit.  §  250.  And  note,  that  partition  by  agreement  between  par- 
ceners may  be  made  by  law  between  them,  as  well  as  by  parol  with- 
out deed,  as  by  deed. 

Co.  Lit.  169  a.  Here  it  appeareth,  that  not  only  lands  and  other 
things  that  may  pass  by  livery  without  deed,  but  things  also  that 
do  lie  in  grant,  as  rents,  commons,  advowsons  and  the  like,  that 
cannot  pass  by  grant  without  deed,  whether  they  be  in  one  county 
or  in  several  counties,  may  be  parted  and  divided  by  parol  without 
deed.  But  a  partition  between  jointenants  is  not  good  without 
deed,  albeit  it  be  of  lands,  and  that  they  be  compellable  to  make 
partition  by  the  Statutes  of  31  H.  8,  cap.  10,  and  32  H.  8,  cap.  32, 
because  they  must  pursue  that  act  by  writ  de  partitione  facienda; 
and  a  partition  between  jointenants  without  writ  remains  at  the 
common  law,  which  could  not  be  done  by  parol.  And  so  it  is  and 
for  the  same  reason  of  tenants  in  common.  But  if  two  tenants 
in  common  be,  and  they  make  partition  by  parol,  and  execute  the 
same  in  severalty  by  livery,  this  is  good,  and  sufficient  in  law. 
And  therefore  where  books  say,  the  jointenants  made  partition 
without  deed,  it  must  be  intended  of  tenants  in  common  and 
executed  by  livery.^ 

Lit.  §  262.  Also,  if  a  man  be  seised  in  fee  of  a  carve  of  land 
by  just  title,  and  he  disseise  an  infant  wuthin  age  of  another  carve, 
and  hath  issue  two  daughters,  and  dieth  seised  of  both  carves,  the 


On  allowance  in  a  partition  suit  for  repairs  by  a  cotenant,  see  Drennen 
V.  Walker,  21  Ark.  539;  McDcarman  v.  McClurr,  31  Ark.  559;  Ilogan  v. 
MrMahon,  115  Md.  195;  Ford  v.  Knapp,  102  N.  Y.  135;  Fa.<:sitt  v.  Seip, 
249  Pa.  576.    Compare  Ward  v.  Ward,  40  W.  Va.  611. 

1  See  Freeman,  Cotenancy,  §  396. 

Since  the  Statute  of  Frauds  parol  partition,  followed  by  possession  by 
each  co-tenant  of  the  portion  allotted  to  him.  hixs  been  upheld.  Belts  v. 
Ward.  196  Ala.  248;  Vaughn  v.  Harper,  106  S.  E.  (Ga.)  100;  Duffi/  v.  Duffy, 
243  III.  476;  Breaux  v.  Hanson  Lumber  Co.,  125  La.  421;  Wddey  v.  Bonney, 
31  Mi.<s.  644;  Natchez  v.  Vandervcldc,  31  Miss.  706;  Wood  v.  Fleet,  36 
N.  Y.  499;  Ebert  v.  Wood,  1  Binn.  (Pa.)  216;  Mim><  v.  Hair,  80  S.  C.  460; 
Meaeham  v.  Meaeham,  91  Tenn.  532.  And  see  Sunjt  v.  Swijt.  121  Ark.  197; 
Piatt  V.  Hubbell,  5  Ohio  243;  Eaton  v.  Tallmadge,  24  Wis.  217;  3  L.  R.  A. 
N.  s.  806  note. 

But  see  Duncan  v.  Syli'c^tcr,  16  Me.  388;  Porter  v.  Hill,  9  Mass.  34; 
Ballon  V.  Hale,  47  N.  H.  347;  WiUiaynson  v.  Wayland  Od  Co.,  79  W.  Va. 
754;  Johnson  v.  Wihon,  Willes  248. 

As  to  the  nature  of  a  partition  drod  son  Bornsfein  v.  Dnh'-rti/.  204  Mass. 
280,  283;  Harrington  v.  RaivLs,  131  N.  C.  39;  Cottrell  v.  Criffiths,  108  Tenn. 
191 ;  57  L.  R.  A.  332  note. 


454  PARTITION  [chap.   VII 

infant  being  then  within  age,  and  the  daughters  enter  and  make 
partition,  so  as  the  one  earve  is  allot tc^d  for  the  part  of  the  one,  as 
per  case  to  the  youngest  in  allowance  of  the  other  carve  which  is 
allotted  to  the  purparty  of  the  other,  if  afterward  the  infant  enter 
into  the  carve  whereof  he  was  disseised  upon  the  possession  of  the 
parcener  which  hath  the  same  carve,  then  the  same  parcener  may 
enter  into  the  other  carve  which  her  sister  hath,  and  hold  in  par- 
cenary with  her.  But  if  the  youngest  alien  the  same  carve  to  an- 
other in  fee  before  the  entry  of  the  infant,  and  after  the  infant 
enter  upon  the  possession  of  the  alienee,  then  she  cannot  enter  into 
the  other  carve;  because  by  her  alienation  she  hath  altogether  dis- 
missed herself  to  have  any  part  of  the  tenements  as  parcener.  But 
if  the  youngest  before  the  entry  of  the  infant  make  a  lease  of  this 
for  term  of  years,  or  for  term  of  life,  or  in  fee  tail  saving  the  rever- 
sion to  her,  and  after  the  infant  enter,  there  peradventure  other- 
wise it  is;  because  she  hath  not  dismissed  herself  of  all  which  was 
in  her,  but  hath  reserved  to  her  the  reversion  and  the  fee,  &c. 

Co.  Lit.  173  b,  174  a.  What  if  the  whole  estate  in  part  of  the 
purparty  of  one  parcener  be  evicted  by  a  title  paramount;  whether 
is  the  whole  partition  avoided,  for  that  Littleton  here  putteth  the 
case  that  the  whole  purparty  of  the  one  is  defeated? 

The  second  question  is,  whether  if  but  part  of  the  state  of  one 
coparcener  be  evicted,  as  an  estate  in  tail,  or  for  life,  leaving  a 
reversion  in  the  coparcener,  whether  that  shall  avoid  the  partition 
in  the  whole? 

To  the  first  it  is  answered,  that  if  the  whole  estate  in  part  of  the 
purparty  be  evicted,  that  shall  avoid  the  partition  in  the  whole, 
be  it  of  a  manor,  that  is  entire,  or  of  acres  of  ground,  or  the  like 
that  be  several;  for  the  partition  in  that  case  implieth  for  this 
purpose  both  a  warranty  and  a  condition  in  law,  and  either  of 
them  is  entire,  and  giveth  an  entry  in  this  case  into  the  whole. 
And  so  hath  it  been  lately  resolved  both  in  the  case  of  exchange 
and  of  the  partition. 

To  the  second,  if  any  estate  of  freehold  be  evicted  from  the  co- 
parcener in  all  or  part  of  her  purparty,  it  shall  be  avoided  in  the 
whole.  As  if  A.  be  seised  in  fee  of  one  acre  of  land  in  possession, 
and  of  the  reversion  of  another  expectant  upon  an  estate  for  life, 
and  he  disseise  the  lessee  for  life  who  makes  continual  claim;  A. 
dieth  seised  of  both  acres,  and  hath  issue  two  daughters;  partition 
is  made,  so  as  the  one  acre  is  allotted  to  the  one,  and  the  other  acre 
to  the  other ;  the  lessees  enter :  the  partition  is  avoided  for  the 
whole,  and  so  likewise  hath  it  been  lately  resolved. 

Yet  there  is  a  diversity  between  the  warranty,  and  the  condition 
which  the  law  createth  upon  the  partition.  Where  one  coparcener 
taketh  benefit  of  the  condition  in  laAv,  she  defeateth  the  partition 
in  the  whole.  But  when  she  voucheth  by  force  of  the  warranty 
in  law  for  part,  the  partition  shall  not  be  defeated  in  the  whole, 


PARTITION  455 

but  she  shall  recover  recompense  for  that  part.  And  therein  also 
there  is  another  diversity  between  a  recovery  in  value  by  force 
of  the  warranty  upon  the  exchange  and  upon  the  partition.  For 
upon  the  exchange,  he  shall  recover  a  full  recompense  for  all  that 
he  loseth.  But  upon  the  partition  she  shall  recover  but  the  moiety, 
or  half  of  that  which  is  lost,  to  the  end  that  the  loss  may  be  equal. ^ 

Lit,  §  290.  Also,  jointenants  (if  they  will)  may  make  partition 
between  them,  and  the  partition  is  good  enough;  but  they  shall  not 
be  compelled  to  do  this  by  the  law;  but  if  they  will  make  partition 
of  their  own  will  and  agreement,  the  partition  shall  stand  in  force. 

Lit.  §  318.  Also,  tenants  in  common  may  well  rnake  partition 
between  them  if  they  will,  but  they  shall  not  be  compelled  to  make 
partition  by  the  law;  but  if  they  make  partition  between  themselves 
by  their  agreement  and  consent,  such  partition  is  good  enough, 
as  is  adjudged  in  the  book  of  assizes. 

St.  31  Hen.  VIII.  c.  1."  II.  Be  it  therefore  enacted  by  the 
King  our  most  dread  sovereign  lord,  and  by  the  assent  of  the  Lords 
spiritual  and  temporal,  and  by  the  Commons,  in  this  present  Parlia- 
ment assembled,  that  all  joint  tenants  and  tenants  in  common,  that 
now  be,  or  hereafter  shall  be,  of  any  estate  or  estates  of  inheritance 
in  their  own  rights,  or  in  the  right  of  their  wives,  of  any  manors, 
lands,  tenements  or  hereditaments  within  this  realm  of  England, 
Wales,  or  the  marches  of  the  same,  shall  and  may  be  coacted  and 
compelled,  by  virtue  of  this  present  Act,  to  make  partition  between 
them  of  all  such  manors,  lands,  tenements  and  hereditaments,  as 
they  now  hold,  or  hereafter  shall  hold  as  joint  tenants  or  tenants 
in  common,  by  writ  de  jmrticipatione  facienda,  in  that  case  to  be 
devised  in  the  King  our  sovereign  lord's  Court  of  Chancery,  in 
like  manner  and  form  as  coparceners  by  the  common  laws  of  the 
realm  have  been  and  are  compellable  to  do,  and  the  same  writ  to  be 
pursued  at  the  common  law. 

III.  Provided  alway,  and  be  it  enacted,  that  every  of  the  said 
joint  tenants  or  tenants  in  common,  and  their  heirs,  after  such 
partition  made,  shall  and  may  have  aid  of  the  other  or  of  tlpieir 
heirs,  to  the  intent  to  dereign  the  Avarranty  paramount,  and  to  re- 
cover for  the  rate,  as  is  used  between  coparceners  after  partition 
made  by  the  order  of  the  common  law;  anything  in  this  Act  con- 
tained to  the  contrary  notwithstanding. 

1  See  Rawle,  Gov.  for  Title,  5th  ed.,  §§  277-279;  Jones  v.  BigstajJ.  95 
Ky.  395;  Bcale  v.  Stroud,  191  Ky.  755;  Brown  v.  TmrhofJ.  235  Mo.  449; 
Walker  v.  Hall,  15  Ohio  St.  355;  Weiser  v.  Weiser,  5  Watts  (Pa.)  279; 
Patterson  v.  Lanning,  10  Watts  (Pa.)  135. 

2  The  preamble  is  omitted. 


456  WILLARD    V.   WILLAKD  [CHAP.   VII 


WILLARD  V.  WILLARD 

145  U.  S.  116.     1892. 

This  was  a  bill  in  equity  filed  January  3,  1888,  by  Henry  K. 
Willard  against  Joseph  C.  Willard,  under  the  act  of  August  15,  1876, 
c.  297,  (which  is  copied  in  the  margin,^)  for  partition  of  land  in  the 
city  of  Washington,  bounded  on  Pennsylvania  Avenue  on  the  south, 
Fourteenth  street  on  the  east,  and  F  street  on  the  north,  containing 
more  than  33,000  square  feet,  and  with  the  building  thereon  known 
as  Willard's  Hotel. 

The  allegations  of  the  bill  were  that  the  plaintiff  and  the  defend- 
ant were  the  owners  of  the  land  in  fee  simple,  as  tenants  in  common, 
and  each  the  owner  of  an  undivided  half  that  the  plaintiff  became 
and  was  the  owner  of  his  haK  under  a  deed  from  Henry  A.  Willard, 
dated  December  1,  1887,  and  duly  recorded;  and  that  the  plaintiff 
desired  to  have  partition  of  the  land,  and  to  have  his  share  thereof 
set  apart  to  him  in  severalty;  or,  if  in  the  opinion  of  the  court  the 
land  could  not  be  specifically  divided  between  the  parties  without  loss 
and  injury  to  them  and  to  the  purposes  for  Avhich  the  land  was  used, 
that  for  the  purposes  of  partition  it  might  be  sold,  and  the  proceeds 
divided  between  him  and  the  defendant ;  and  he  praj^ed  for  partition 
accordingly. 

The  ausw^er,  filed  March  6,  1888,  alleged  that  the  plaintiff's  father, 
Henry  A.  Willard,  and  the  defendant  were  the  owners  in  fee  simple, 
as  tenants  in  common,  of  the  land;  and  that  it  was  of  great  value, 
and  for  the  past  twenty-five  years  and  upwards  had  been  leased  by 
Henry  A.  Willard  and  the  defendant  to  different  persons  for  hotel 

1  An  act  relating  to  partition  of  real  estate  in  the  District  of  Columbia. 

Sec.  1.  All  tenants  in  common  and  coparceners  of  any  estate  in  lands, 
tenements  or  hereditaments,  equitable  as  well  as  legal,  within  the  District 
of  Columbia,  may,  in  the  discretion  of  the  court,  be  compelled  in  any  court 
of  competent  jurisdiction  to  make  or  suffer  partition  of  such  estate  or 
estates.  In  proceedings  for  partition  all  persons  in  interest  shall  be  made 
parties  in  the  same  manner  as  in  cases  of  equity  jurisdiction.  And  in  pro- 
ceedings for  partition  under  this  act,  the  court  may,  in  addition  to  the 
powers  herein  conferred,  exercise  such  powers  as  are  or  may  be  conferred 
by  virtue  of  the  general  equity  jurisdiction  of  the  court. 

Sec.  2.  The  court,  in  all  cases,  in  decreeing  partition,  may,  if  it  satis- 
factorily appears  that  said  lands  and  tenements,  or  any  estate  or  interest 
therein,  cannot  be  divided  without  loss  or  injury  to  the  parties  interested, 
decree  a  sale  thereof,  and  a  division  of  the  money  arising  from  such  sale 
among  the  parties,  according  to  their  respective  rights  and  interests. 

Sec.  3.  In  all  such  sales,  unless  the  court  shall  by  special  order  direct  or 
require,  on  good  cause  shown,  that  the  sale  be  made  for  cash,  the  purchase 
money  shall  be  payable  one  third  on  day  of  sale,  one  third  in  one  year, 
and  one  third  in  two  years  thereafter,  with  interest,  the  deferred  payment.? 
to  be  secured  to  the  parties,  according  to  their  respective  interests,  by  good 
and  sufficient  mortgage  upon  the  premises  so  sold,  which  shall  be  subject 
to  the  approval  of  the  court.    19  Stat.  202. 


WILLARD    V.   WILLARD  457 

purposes,  and  was  now  under  lease  and  used  as  a  hotel  at  a  remunera- 
tive rental;  that  the  defendant  had  no  knowledge  of  the  conveyance 
to  the  plaintiff,  and  required  proof  thereof;  and  denied  that  the  de- 
fendant should  be  compelled  to  make  or  suffer  partition  of  the  land, 
or  that  it  was  within  the  power  of  the  court  to  deprive  him,  against 
his  will  and  without  his  consent,  of  his  interest  and  estate  in  the 
whole  land,  either  by  a  partition  in  severalty  or  by  a  sale  thereof. 

A  general  replication  was  filed,  and  proofs  taken,  which  showed 
the  following  facts:  The  defendant  and  Henry  A.  Willard  made  a 
lease  of  the  land  for  five  years  and  four  months  from  January  1, 
3884,  at  an  annual  rent  of  $20,500,  to  Phoebe  D.  Cook,  which  was 
afterwards  assigned,  with  the  lessors'  consent,  to  Orrin  G.  Staples. 
On  December  1,  1887,  Henry  A.  Willard  conveyed  to  the  plaintiff  an 
undivided  half  of  the  land,  in  foe  simple,  by  deed  duly  recorded.  The 
property  was  peculiarly  adapted  to  hotel  purposes,  and  was  worth 
in  its  present  condition  more  than  $600,000,  and  could  not  be  divided 
without  serious  loss. 

The  court  in  special  term,  on  July  7,  1888,  ordered  a  sale  in  accord- 
ance with  the  provisions  of  the  act  of  Congress,  and  appointed  trus- 
tees to  make  a  sale  and  conveyance,  and  to  pay  the  proceeds  into 
court.  The  decree  was  affirmed  in  general  term,  on  October  22,  1888. 
6  Mackey,  559. 

The  defendant  appealed  to  this  court,  and  assigned  the  following 
errors  in  the  decree: 

"  1st.  The  property  was  under  lease  for  a  term  of  years  at  the 
time  the  bill  was  filed,  and  the  plaintiff  not  entitled  to  possession. 

"2d.  Under  the  act  of  Congress  of  August  15,  1876,  a  tenant 
in  common  has  not  an  absolute  right  to  partition,  but  it  is  dis- 
cretionary with  the  court,  and  something  besides  the  existence  of  the 
tenancy  must  be  averred  and  shown  in  order  to  call  such  discretion 
into  exercise,  which  was  not  done  in  this  case." 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

In  a  court  having  general  jurisdiction  in  equity  to  grant  parti- 
tion, as  in  a  court  of  law,  a  tenant  in  common,  whose  title  in  an 
undivided  share  of  the  land  is  clear,  is  entitled  to  partition,  as  a 
matter  of  right,  so  that  he  may  hold  and  enjoy  his  property  in 
severalty.  Story  Eq.  Jur.  §§  653,  656;  Parker  v.  Gerard,  Ambler, 
236;  Calmady  v.  Calmady,  2  Ves.  Jr.  568;  Wisely  v.  Findlay,  3 
Rand.  361;  Smiih  v.  l:^mitli,  Hoffman  Ch.  506,  and  10  Paige,  470; 
Donnell  v.  Mateer,  7  Iredell  Eq.  94;  Camphell  v.  Lowe,  9  Marvland, 
500. 

Under  the  English  stntutes  of  31  H.  VTIT,  c.  1,  and  32  II.  VIIT, 
c.  32,  in  force  in  the  State  of  Maryland  before  ISOl,  and  therefore 
in  the  District  of  Columbia,  any  tenant  in  common  in  fee  might 
compel  partition  at  bnv  by  division  of  the  estate  held  in  common. 
Alexander's  British  Statutes  in  Maryland,  311,  312,  332;  Lloyd  v. 


458  WILLARD    V.    WILLAUD  [CHAP.    VII 

Gordon,  2  Har.  &  McH.  254;  Rev.  Stat.  D.  C.  §  92.  It  is  unneces- 
sary to  consider  how  far  the  Supreme  Court  of  the  District  of 
Columbia  had  equity  jurisdiction  in  cases  of  partition  before  the 
act  of  Congress  of  August  15,  1876,  c.  297,  because  this  act  expressly 
empowers  the  court,  exercising  general  jurisdiction  in  equity,  in  its 
discretion,  to  compel  all  tenants  in  common  of  any  estate,  legal  or 
equitable,  to  make  or  suffer  partition,  either  by  division  of  the  estate, 
or,  if  it  satisfactorily  appears-  that  the  estate  cannot  be  divided 
without  loss  or  injury  to  the  parties  interested,  then  by  sale  of  the 
estate  and  division  of  the  proceeds  among  the  parties,  according  to 
their  respective  rights  and  interests.  19  Stat.  202.  This  statute, 
while  it  authorizes  the  court  to  compel  a  partition  by  division  or 
by  sale,  at  its  discretion,  as  the  facts  appearing  at  the  hearing 
may  require,  does  not  affect  the  general  rule,  governing  every  court 
of  law  or  equity  having  jurisdiction  to  grant  partition,  that  parti- 
tion is  of  right,  and  not  to  be  defeated  by  the  mere  unwillingness 
of  one  party  to  have  each  enjoy  his  owm  in  severalty. 

In  equity,  as  at  law,  a  pending  lease  for  years  is  no  obstacle 
to  partition  between  owners  of  the  fee.  Co.  Lit.  46a,  167a ;  Com. 
Dig.  Parcener,  C.  6;  Wilhinson  v.  Joherns,  L.  K.  16  Eq.  14;  Hunt 
V.  Hazelton,  5  N.  H.  216;  Woodworth-y.  Campbell,  5  Paige,  518; 
Thruston  v.  Minhe,  32  Maryland,  571;  0001:  v.  Wehh,  19  Minne- 
sota, 167.  The  decision  in  Hunnewell  v.  Taylor,  6  Cush.  472,  cited 
by  the  appellant,  was  governed  by  an  express  statute  of  Massachu- 
setts authorizing  a  petition  for  partition  "  by  any  person  who  has 
an  estate  in  possession,  but  not  by  one  who  has  only  a  remainder 
or  reversion,"  which  was  presently  modified  by  an  enactment  that 
partition  might  be  had  notAvithstanding  the  existence  of  a  lease 
of  a  whole  or  part  of  the  estate.  Mass.  Stat.  1853,  c.  410,  §  1;  Gen. 
Stat.  c.  136,  §§  3,  67;  Pub.  Stat.  c.  178,  §§  3,  68.  In  Moore  v. 
Shannon,  6  Mackey,  157,  there  was  an  outstanding  life  estate,  so 
that  the  plaintiff  was  not  in  possession  of  the  freehold,  and  was 
therefore  denied  partition.  See  Co.  Lit.  and  Com.  Dig.  uhi  supra; 
Evans  v.  Bagshaw,  L.  R.  8  Eq.  469,  and  L.  E.  5  Ch.  340;  Brown 
V.  Brown,  8  I'l'.  H.  93. 

The  present  bill,  after  setting  forth  the  titles  in  fee  of  the  parties, 
alleges  that  the  plaintiff  desires  to  have  partition  of  the  land  and 
his  share  set  apart  to  him  in  severalty,  or,  if  in  the  opinion  of 
the  court  this  cannot  be  done  without  injury  to  the  parties  and  to 
the  purposes  for  which  the  land  is  used,  then  by  sale  of  the  land 
and  division  of  the  proceeds,  and  prays  for  partition  accordingly. 
The  bill,  following  the  statute,  and  seeking  partition  in  either 
inode,  as  the  court  in  its  discretion  might  think  fit,  is  in  proper  and 
sufficient  form.  Any  allegation  of  special  reasons  for  partition, 
or  for  having  it  made  in  one  way  or  in  the  other,  would  have  been 
unusual  and  superfluous.  The  decisions  in  Maryland,  cited  by  the 
appellant,    were    made    under    statutes    authorizing    partition    only 


HALL    V.    PIDDOCK  459 

t 

wlien   it   would   be   for   the   interest    and    advantage   of   the   parties 

that  the  land  should  be  sold,  and  therefore  held  that  it  must  be  so 

alleged  in  the  petition.     Tomlinson  v.  McKaig,  5  Gill,  256;  Mew- 

shaiu  V.  Meivshaw,  2  Maryland  Cb,  12. 

This  disposes  of  the  only  errors  assigned  or  argued.  It  is  not 
denied,  and  could  not  be,  upon  the  proofs,  that,  if  the  plaintiff  was 
entitled  to  partition,  it  was  rightly  ordered  to  be  made  by  sale,  and 
not  by  division  of  the  estate.  Decree  affirmed?- 

Mr.  Justice  Brewer  was  not  present  at  the  argument,  and  took 
no  part  in  the  decision. 


HALL  /;.  PIDDOCK  AND  OTHERS 
21  N.  J.  Eq.  311.     1871. 

The  argument  of  this  cause  was  had  upon  the  bill,  answer  and 
proofs. 

The  Chancellor.  [Hon.  Abraham  O.  Zabriskie.]  The  object 
of  the  bill  in  this  case  is  to  restrain  partition  proceedings  com- 
menced at  law,  and  for  an  equitable  partition  in  this  court.  Courts 
of  law  have  jurisdiction  of  partition,  as  well  as  courts  of  equity, 
and  when  proceedings  have  been  commenced  at  law  the  tribunal 
must  retain  the  jurisdiction,  and  a  court  of  equity  will  not  inter- 
fere with  it,  unless  such  interference  becomes  necessary  to  protect 
.some  party  thereto  from  fraud  or  wrong,  or  to  secure  to  him  some 
clear  right  which  the  law  tribunal,  from  the  manner  of  proceeding 
before  it,  cannot  secure.  For  such  purpose  courts  of  equity,  in 
exercising  one  of  their  principal  functions,  which  is  to  remedy  in- 
justice occasioned  by  the  strict  rules  of  the  law  and  the  manner 
of  proceeding  in  courts  of  law,  will  interfere  to  prevent  a  failure 
of  justice  and  loss  of  rights. 

In  this  case  the  complainant  is  tenant  in  common  with  the  defend- 
ant, of  an  acre  of  land  partly  covered  with  buildings,  situate  in  the 
county  of  Hunterdon,  of  which  he  owns  three-fourths,  and  the  de- 
fendant one-fourth.  He  claims  that  the  buildings  on  the  land  were 
erected   by   those   under   whom  he   derives   his   title   to   the  three- 

1  Soo  Wheat  v.  Wheat,  190  Ala.  461;  Culver  v.  Culver,  2  Root  (Conn.) 
278;  Drake  v.  Merkle,  153  111.  318;  Richarchon  v.  VanCimdy,  271  111.  47G; 
Hill  V.  Sangamon  Co.,  295  111.  619;  Calvert  v.  Calvert,  297  111.  22,  28;  Dustin 
V.  Broum,  297  111.  499;  Tower  v.  Tower,  141  Ind.  223;  Carson  v.  Heche, 
222  S.  W.  (Mo.)  850;  Chiekamauga  Trmt  Co.  v.  Lonas,  139  Tcnn.  228;  28 
L.  R.  A.  N.  s.  125  note;   L.  R.  A.  1918  D  4.54  note;   12  A.  L.  R.  644  note. 

Partition  cannot  be  obtained  by  a  plaintiff  having  legal  title  but  not 
actual  possession  where  the  property  is  held  by  one  claiming  adversely 
to  him.  Ilarrifion  v.  International  Silver  Co.,  78  Conn.  417;  Channeey  v. 
Wollenberg,  115  Pac.  (Oreg.)  419;  Freeman,  Cotenancy,  2d  ed.,  §§  446.  447. 
But  see  Trainor  v.  Greenovgh,  145  111.  543. 


460  HALL    V.     PIDDOCK  [CHAP.   VII 

fourtlis,  and  that  no  part  were  erected  by  tlie  defendants,  or  those 
under  Avhom  they  obtained  title. 

The  land  belonged  to  Abraham  Van  Horn,  who  died  in  1813.  He 
devised  it  to  his  wife  for  life,  and  then  to  trustees  for  his  son 
Matthew  for  his  life,  and  at  the  death  of  Matthew  to  his  four  sons. 
The  widow,  Matthew,  and  three  of  his  sons,  conveyed  the  land  to 
Abraham  L.  Voorhis,  covenanting  that  the  fourth  son,  George, 
should  convey,  when  of  age.  Abraham  L.  Voorhis  conveyed  to  D. 
Sanderson,  who  supposed  that  the  title  was  perfect,  and  erected 
some  buildings;  Sanderson  conveyed  to  John  Hall,  who  supposed 
the  title  good,  erected  other  buildings  at  considerable  expense,  and 
kept  a  •  hotel  in  the  mansion-house  built  by  him  on  the  premises. 
There  were  no  improvements  on  the  premises  when  conveyed  to 
Abraham  L.  Voorhis.  In  1865  Matthew  died,  and  on  the  1st  of  April 
of  that  year  his  son  George  conveyed  his  fourth  to  the  defendants. 
Hall,  believing  his  title  good,  denied  their  right,  which  they  estab- 
lished by  bringing  an  ejectment.  The  defendants  then  applied  to 
the  Chief  Justice  for  the  appointment  of  commissioners  to  divide, 
under  the  Statute  for  the  more  easy  partitioii  of  lands;  and  such 
proceedings  were  had  on  that  application,  that  an  order  for  sale 
was  made  before  the  complainant  had  any  knowledge  of  the  proceed- 
ings. The  regularity  and  legality  of  these  proceedings  are  not 
denied. 

These  facts  stated  in  the  bill  are  all  admitted  by  the  answer,  ex- 
cept the  allegation  of  the  complainant,  that  he  and  those  under 
whom  he  claims  supposed  that  they  had  good  title  to  the  whole  of 
the  premises.  Upon  this  point  much  evidence  has  been  taken.  But 
as  this  question,  in  the  view  I  take  of  the  matter,  is  not  material 
to  the  decision,  I  shall  not  review  this  evidence. 

The  rule  that  a  tenant  in  common,  who  has  made  improvements 
on  the  land  held  in  common,  is  entitled  to  an  equitable  partition,  is 
well  established,  and  is  hardly  disputed  by  counsel.  The  only  good 
faith  required  in  such  improvements  is  that  they  should  be  made 
honestly  for  the  purpose  of  improving  the  property,  and  not  for 
embarrassing  his  co-tenants,  or  encumbering  their  estate,  or  hinder- 
ing partition.  And  the  fact  that  the  tenant  making  such  improve- 
ments knows  that  an  undivided  share  in  the  land  is  held  by  another, 
is  no  bar  to  equitable  partition.  'No  other  want  of  good  faith  is 
alleged  or  contended  for  by  the  defendants  in  this  cause. 

The  peculiarities  of  an  equitable  partition  are:  that  such  part 
of  the  land  as  may  be  more  advantageous  to  any  party  on  account 
of  its  proximity  to  his  other  land,  or  for  any  other  reason,  will  be 
directed  to  be  set  off  to  him  if  it  can  be  done  without  injury  to  the 
others;  that  when  the  lands  are  in  several  parcels  each  joint  owner 
is  not  entitled  to  a  share  of  each  parcel,  but  only  to  his  equal  share 
in  the  whole;  that  where  a  partition  exactly  equal  cannot  be  made 
without  injury,  a  gross  sum  or  yearly  rent  may  be  directed  to  be 


HALL    V.    PIDDOCK  461 

paid  for  owelty  or  equality  of  partition,  by  one  whose  share  is  too 
large,  to  others  whose  shares  are  too  small;  and  that  where  one  joint 
owner  has  put  improvements  on  the  property,  he  shall  receive  com- 
pensation for  his  improvements,  either  by  having  the  part  upon 
which  the  improvements  are,  assigned  to  him  at  the  value  of  the 
land  without  the  improvements,  or  by  compensation  directed  to  be 
made  for  them. 

The  doctrine  as  to  allowance  for  improvements  is  laid  down  by 
Justice  Story  in  1  Eq.  Jur.  §  655.  It  was  recognized  and  acted  on 
by  the  English  Court  of  Exchequer  in  equity,  in  Swan  v.  Swan, 
8  Price,  518;  by  the  courts  of  New  York,  in  Town  v.  Needham,  3 
Paige,  553 ;  St.  Felix  v.  Ranhin,  3  Edw.  Ch.  323 ;  Conklin  v.  Conklin, 
3  Sandf.  Ch.  65,  and  Green  v.  Putnam,  1  Bai'b.  S.  C.  500;  and  by 
this  court,  in  Broohfield  v.  Williams,  1  Green's  Ch.  341;  Ohert  v. 
Obert,  1  Halst.  Ch.  397,  and  Doughaday  v.  Crowell,  3  Stockt. 
201. 

In  Green  v.  Putnam  and  Broohfield  v.  Williams,  as  in  this  case, 
the  improvements  were  made  by  tenants  in  common  in  reversion 
during  the  previous  life  estate,  which  was  held  no  bar  to  the  allow- 
ance. And  in  St.  Felix  v.  Rankin,  Conklin  v.  Conklin,  Doughaday 
V.  Crowell,  Town  v.  Needham,  and  Brookfield  v.  Williams,  the  com- 
plainants were  the  parties  claiming  the  allowance;  and  the  allowance 
in  these  cases  was  not  made,  on  the  principle  that  a  party  asking 
relief  in  equity  must  first  do  what  is   equitable  himself. 

In  making  the  partition  in  this  case,  if  any  can  be  made  without 
great  injury,  the  share  or  one-fourth  to  be  allotted  to  the  defend- 
ants must,  "if  practicable,  be  set  off  from  such  part  of  the  premises 
as  has  no  improvements  upon  it  or  improvements  of  small  value, 
and  must  be  equal  in  value,  without  improvements,  to  one-fourth 
of  what  would  be  the  value  of  the  whole  tract  if  it  had  no  improve- 
ments upon  it. 

I  am  not  satisfied  from  the  evidence  that  this  tract  cannot  be 
partitioned  in  this  manner  without  great  injury.  The  report  of 
the  commissioners  appointed  by  the  Chief  Justice,  and  his  action 
in  confirming  it,  do  not  affect  the  question  as  res  ad  judicata.  There 
the  direction  was  to  divide  the  whole  premises,  including  the  build- 
ings, into  four  equal  shares,  and  to  assign  one  share  by  lot  to  each 
of  the  original  tenants  in  common.  I  am  satisfied  that  the  premises 
could  not  be  divided  in  that  manner  without  great  prejudice  to  the 
owners. 

In  examining  the  map  annexed  to  the  answer,  I  see  that  the 
northeast  side  fronts  on  a  public  road,  and  that  on  the  northwest 
side  of  the  tract  a  lot  of  ninety  feet  in  front,  with  a  depth  which 
might  be  extended  to  two  hundred  and  forty-five  feet,  being  nearly 
one-half  of  the  whole  tract,  has  upon  it  only  a  granary  and  a  shed. 
If  these  are  of  small  value,  their  value  might  be  disregarded  by 
consent  of  the  complainant;  or  if  they  are,  as  seems  probable,  build- 


462  HALL    V.      PIDDOCK  [CHAP.    VII 

ings  that  can  be  removed  without  much  loss,  the  right  to  remove 
them  within  a  reasonable  time  might  be  reserved  to  the  complainant. 
Coupled  with  the  right  in  equity  to  allow  a  proper  amount  as  owelty 
to  equalize  the  partition,  the  evidence,  which  consists  mainly  of 
the  opinions  of  witnesses  without  regard  to  these  matters,  does  not 
convince  me  that  a  partition  cannot  be  made  without  great  injury. 

It  must,  therefore,  be  referred  to  a  master,  to  inquire  into  and 
report  what  would  be  the  value  of  the  whole  tract  if  no  improve- 
ments had  been  made  upon  it,  and  whether  some  part  of  the  tract 
upon  which  no  improvements  have  been  made,  or  only  improve- 
ments of  small  value,  or  that  can  be  removed  Avithout  material 
loss,  cannot  be  set  off,  Avliich  will  be,  without  improvements,  equal 
in  value  to  one-fourth  of  the  value  of  the  whole  tract  so  ascertained ; 
or  whether  such  part  cannot  be  set  off  in  that  manner  by  allow- 
ing or  charging  a  reasonable  sum  for  owelty;  and  whether  such 
partition  can  be  made  without  great  prejudice  to  the  owners  of 
the  property.  And  further  to  inquire  into  and  report  what  is  the 
present  value  of  the  premises  with  the  improvements  now  stand- 
ing on  them,  and  also  what  has  been  the  yearly  net  value  of  the 
premises  from  April  1st,  1865,  when  the  defendants  acquired  their 
title  to  the  one-fourth  of  it. 

The  defendants  are  entitled  to  such  portion  of  the  fourth  of  the 
net  proceeds  of  the  premises  as  belongs  to  the  land.  The  proper 
way  to  ascertain  and  apportion  that,  is  to  give  to  the  land  such 
proportion  of  the  whole  net  yearly  value,  as  the  value  of  the  land 
bears  to  the  value  of  the  whole  premises,  and  to  award  one-fourth 
of  it  tp  the  defendants. 

If  it  shall  appear  that  the  premises  cannot  be  divided  in  the 
manner  directed,  a  sale  must  be  ordered,  and  out  of  the  proceeds 
of  the  sale  a  proper  allowance  made  for  the  value  of  the  improve- 
ments put  upon  the  premises.  The  part  of  the  proceeds  to  be 
allowed  for  the  improvements  must  be  such  proportion  as  the  value 
of  the  improvements,  that  is  the  excess  of  the  value  of  the  whole 
over  the  value  of  the  land,  bears  to  the  value  of  the  whole  premises. 
The  cases  of  ConM'in  v.  Conl'Jin  and  Green  v.  Putnam,  are  author- 
ity for  such  allowance  out  of  the  proceeds  of  the  sale.  In  the  last 
case,  Justice  Paige  says :  "  Where  one  tenant  in  common  lays  out 
money  in  improvements  on  the  estate,  a  court  of  equity  will  not 
grant  a  partition  without  first  directing  an  account  and  suitable 
compensation,  or  else  in  the  partition  it  will  assign  to  such  tenant 
in  common  that  part  of  the  premises  on  which  the  improvements 
have  been  made."  And  he  directs  a  reference  to  inquire  into  the 
value  of  the  buildings,  and  by  whom  paid  for,  and  the  amount 
of  rents  and  profits,  and  by  whom  received,  so  that  in  case  a  sale 
should  be  ordered  the  proper  allowance  might  be  made. 

The  costs  and  expenses  incurred  by  the  defendants  in  the  pro- 
ceedings for  partition  begun  by  them,  must  be  allowed  out  of  the 


EMSON    V.    POLHEMUS  463 

proceeds  of  sale;  those  proceedings  were  authorized  by  Statute,  and 
were  arrested  by  this  court  in  order  that  more  full  equity  might 
be  done  between  the  parties  than  could  be  done  at  law.^ 


EMSON  V.  POLHEMUS 
28  N.  J.  Eq.  439.     1877. 

The  respondent,  Polhemus,  and  one  Hodson  were  tenants  in 
common  of  a  tract  of  woodland,  of  which  they  made  a  voluntary 
partition,  by  deeds  dated  August  21st,  1865.  These  deeds  were 
duly  recorded.  Before  this  parting  of  the  property,  the  appellant, 
Emson,  had  recovered  a  judgment  against  Hodson,  which  became  a 
lien  on  the  premises  in  question;  on  which  judgment,  and  long 
subsequent  to  the  partition,  that  is,  on  the  Sth  of  August,  1871,  a 
writ  of  fieri  facias  was  issued,  and  by  force  of  which  the  sheriff  sold 
and  conveyed  to  Emson  the  undivided  interests  of  Hodson  in  the 
tract.  Having  obtained  a  sheriff's  deed,  Emson  took  proceedings, 
under  the  Act  "  For  the  more  easy  partition  of  lands  held  by  co- 
parceners, joint-tenants,  and  tenants  in  common,"  for  the  partition 
of  the  premises  between  himself  and  the  respondent.  The  latter 
thereupon  filed  the  bill  in  this  suit  to  restrain  such  proceedings; 
on  the  final  hearing  this  injunction  was  made  perpetual. 

The  Chief  Justice.  [Hon.  Mercer  Beasley.]  In  order  to 
affirm  the  decree  in  this  case  it  is  necessary  to  maintain  the  general 
proposition,  that  after  a  judgment  has  become  a  lien  on  the  un- 
divided share  of  a  tenant  in  common  in  land,  such  tenant  in  common, 
in  concert  with  those  who  share  the  estate  with  him,  can  make  a 
voluntary  partition  that  will,  if  fairly  made,  be  valid  with  respect 
to  the  lien  of  such  judgment. 

I  have  carefully  examined  the  cases  which  have  been  cited  in 
support  of  the  proposition  thus  stated,  and  I  do  not  find  that  any 
of  them  can  be  regarded  as  a  precedent  in  its  favor.  The  nearest 
approach  to  adjudications  upon  the  point  are  those  holding  that  by 

1  See  Porter  v.  Henderson,  203  Ala.  312;  Warner  v.  Logue  Realty  Co., 
107  Atl.  (Del.)  449;  Mantcmach  v.  Studt,  240  111.  464;  Bayley  v.  Nichols,  263 
111.  116,  121;  Berry  v.  Donald,  168  Iowa  744;  Ratterman  v.  Appcrson,  141 
Ky.  821;  Kirk  v.  Crutcher,  145  Ky.  52;  Hunt  v.  Meeker  County  Co.,  135 
Minn.  134;  Warner  v.  Eaton,  78  N.  H.  515.  Compare  Hall  v.  Collier,  146 
Ga.  815;  McKclvey  v.  McKclvey,  83  Kan.  246;  Husband  v.  Aldrich,  135 
Mass.  317;  Scott  v.  Guernsey,  48  N.  Y.  106;  Daniel  v.  Dixon,  163  N.  C.  137; 
St.  Martin  v.   Hcndcrshott,  82  Oreg.  58. 

Reimbursement  of  one  co-tenant  by  another  for  money  spent  in  the 
discharge  of  oblifiations  affecting  the  land  is  allowed  in  partition.  Win.'^ett 
V.  Win.'^ett,  203  Ala.  373;  Willmon  v.  Koyer,  168  Cal.  369;  Price  v.  Ewell, 
169  Iowa  206;  Hogan  v.  McMahon,  115  Md.  195;  Grogan  v.  Groqan,  177  S.  W. 
(Mo.)  649.  Compare  Maupin  v.  Gaines,  125  Ark.  181 ;  Xott  v.  Gundick, 
ISO  N.  W.  (Mich.)   376;   Clute  v.  Clute,  197  N.  Y.  439. 


464  EMSON    V.    POLHEMUS  [CHAP.    VII 

force  of  a  voluntary  partition  made  by  the  husband,  the  right  of 
dower  of  the  wife  will  be  contracted  to  the  parcel  of  land  so  set  off 
to  him.  But  these  decisions  rest,  as  it  seems  to  me,  on  grounds 
peculiar  to  themselves.  In  this  particular  it  is  not  easy  to  sepa- 
rate the  interests  of  tlu;  husband  and  wife,  they  are  so  nearly 
identical.  If  the  husband  acquires  by  the  partition  an  advantageous 
allotment,  both  he  and  his  wife  are  equally  gainers,  and  thpre  is 
a  parity  of  loss  to  each,  if  the  share  set  off  to  the  husband  be  less 
than  his  due.  The  right  of  the  wife  is  inchoate  and  contingent, 
so  that  the  husband  cannot  prejudice,  either  from  his  folly  or  his 
fraud,  her  interest,  without,  to  a  greater  degree,  sacrificing  his  own. 
It  is  not  to  be  wondered  at,  therefore,  that  courts  have  maintained 
that  the  act  of  the  husbaiid,  in  taking  to  himself  his  share  of  un- 
divided land,  shall  bind  the  wife  so  as  to  attach  her  dower  exclu- 
sively to  the  part  so  taken.  The  right  of  partition  is  paramount 
to  the  right  to  dower;  and  when  the  husband  settles  the  extent  of 
his  own  right,  there  seems  nothing  inconsistent  with  principle  or 
justice  in  permitting  him  to  settle,  by  the  same  act,  the  extent  of 
the  right  of  his  wife.  The  judgment,  therefore,  in  Totten  v. 
Stuyvesant,  3  Edw.  Ch.  500,  which  maintains  this  doctrine,  is, 
I  think,  founded  on  correct  principles.  But  I  also  think  that  it 
was  held  with  equal  propriety,  in  Banh  v.  Hanna,  6  Ind.  20,  that 
where  a  husband,  being  a  co-tenant,  conveyed  his  estate  by  a  deed 
in  which  the  wife  did  not  join,  and  the  grantee,  with  the  other  co- 
tenants,  made  a  voluntary  partition,  such  distribution  of  the  land 
did  not  bind  the  wife  after  the  death  of  her  husband. 

But  the  relation  of  debtor  and  creditor  is  not,  in  a  matter  of  this 
kind,  to  be  likened  to  that  of  husband  and  wife,  for  while  the  in- 
terests of  the  latter  are  concurrent,  those  of  the  former  are  adverse; 
and  to  give  to  the  debtor  the  status  of  the  husband  in  this  respect, 
so  that  he  can  affect  his  creditors,  would  be  both  unscientific  and 
impolitic. 

A  creditor  by  his  judgment,  and  a  mortgagee  by  his  deed,  gets 
a  lien  on  an  undivided  interest  in  the  land  of  his  debtor,  which  gives 
him  a  fixed  and  immediate  interest,  and  which  is  in  all  respects 
paramount,  as  far  as  it  extends,  to  the  right  of  the  debtor  in  the 
property.  It  is  obviously  undeniable  that  these  lienholders  will 
be  materially  affected  by  the  allotment  of  the  particular  part  of 
such  property  to  which  their  lien  is  to  be  affixed  by  the  law.  If 
the  ascertainment  of  such  part  be  made  by  an  appeal  to  the  judicial 
power,  such  creditors  have  satisfactory  guarantees  that  the  division 
of  the  land  will  be  fair  and  just;  and  hence  the  propriety  of  the 
provision  of  the  Statute  of  this  State,  that  if,  at  the  time  of  making 
partition,  a  lien  exists  "  upon  the  undivided  estate  of  any  owner, 
by  judgment,  decree,  mortgage  or  otherwise,  such  lien  shall  there- 
after be  a  lien  only  on  the  share  assigned  or  allotted  to  such  owner." 
Rev.  p.   804,  §   36.     And  it  should  be  remarked,  in  passing,  that 


EMSON    V.    POLHEMUS  465 

the  presence  in  the  Statute  of  a  direction  of  this  kind,  appears  to 
intimate  that  an  express  statutory  declaration  was  necessary  to 
affect  the  claims  of  the  lienholders,  even  by  a  judicial  division  of 
the  land  among  the  owners.  And  the  question,  therefore,  is  forcibly 
presented,  why  should  this  same  force  be  imparted  to  the  self -directed 
act  of  the  debtor?  In  such  case  what  assurance  has  the  creditor 
that  his  rights  will  be  adequately  protected? 

The  general  rule  is,  as  was  said  in  Agar  v.  Fairfax,  17  Ves.  543, 
that  partition  never  affects  the  rights  of  third  parties;  and  the  more 
I  have  reflected  on  this  subject,  the  less  I  have  seen  in  favor  of  the 
proposal  to  affect  the  mortgagee  or  judgment  creditor  by  the  volun- 
tary partition  of  the  debtor.  I  can  yield  no  force  at  all  to  the  sug- 
gestion that  "  the  fact  that  the  parties  to  the  partition  may  be 
compelled  to  partition  by  legal  proceedings,  is  a  sufficient  ground 
for  upholding  such  a  voluntary  partition  as  would  have  been  made 
at  law."  Such  a  rule,  and  the  reasoning  that  supports  it,  would 
validate  a  partition,  if  a  fair  one,  which  should  be  made  by  a  single 
tenant  in  common  as  against  his  co-tenants.  Nor  can  I  perceive 
why,  because  an  infant  to  a  certain  extent,  and  retaining  a  qualified 
power  when  of  age  of  repudiating  the  act,  may  bind  his  own  inter- 
est by  joining  in  a  partition,  a  tenant  in  common  should  be  permitted 
by  his  act,  not  only  to  affect  his  own  interest,  but  likewise  the  in- 
terest of  his  non-assenting  creditors.  The  terms  of  these  several 
propositions  appear  to  my  mind  to  have  nothing  in  common,  and 
consequently  the  legitimate  deduction  that  may  be  made  from  the 
one  is  no  warrant  for  drawing  a  similar  conclusion  from  the  other. 

The  principal  argument,  however,  which  is  urged  to  uphold  the 
power  of  the  debtor  to  make  a  partition  by  his  private  action  that 
will  be  obligatory  on  his  creditor  who  holds  a  lien  on  the  land  is, 
that  if  the  partition  thus  made,  is  not  fair,  it  can  be  set  aside. 
But  this  contention  will,  upon  examination,  be  found  to  be  desti- 
tute of  all  real  force.  It  substitutes  a  remedy  for  a  wrong  com- 
mitted, in  the  place  of  a  remedy  against  the  commission  of  such 
wrong.  The  safeguard  against  an  unfair  separation  of  the  rights 
of  the  co-tenants  which  in  a  judicial  procedure  is  provided,  is  the 
substitution  of  the  judgment  of  discreet  and  unprejudiced  men, 
instead  of  the  notions  of  the  owners  of  the  property.  Tlie  proposed 
rule  would  take  away  from  the  creditor  this  safeguard,  and  in  lieu 
of  it  place  in  his  hands  the  cumbersome  privilege  of  overhauling, 
if  he  can  show  unfairness,  the  act  of  the  co-tenants.  All  persons 
will  see  that  by  such  substitution,  the  creditor  is  placed  at  dis- 
advantage, and  has,  in  reality,  lost  a  valuable  right.  The  fact  is, 
the  creditor  should  have  both  rights,  viz.  :  the  right  to  a  partition 
by  unprejudiced  persons,  and  the  right  to  litigate  an  unfair  parti- 
tion, even  if  made  by  such  persons.  But  the  contention  in  question 
deprives  him  of  the  former  of  such  rights,  and  gives  him  no  equiva- 
lent. 


466  EMSON    V.    POLHEMUS  [CHAP.    VII 

Tliere  is  a  furtlicr  objection  of  magnitude.  The  rule  proposed 
would  leave  the  lienholder  subject  to  the  caprice  or  folly  of  his 
debtor  in  the  act  of  agreeing  to  i)artition.  When  a  tenant  in  common 
is  competent  to  contract,  his  agreements  with  his  co-tenants  respect- 
ing the  partition  of  his  land  are  as  binding  upon  him  as  are  his 
contracts  on  any  other  subject.  In  the  absence  of  fraud,  an  un- 
equal partition  assented  to  by  such  tenant  is  not,  in  legal  estimation, 
an  unfair  one  that  will  be  set  aside.  If,  by  the  exercise  of  a  superior 
judgment,  certain  of  the  tenants  in  common  gain  an  advantage, 
the  proceeding,  on  that  account,  is  not  invalid.  "  If  coparceners, 
joint-tenants,  or  tenants  in  common,  seised  in  fee  simple,  make 
partition,  it  is  good  forever,  though  the  value  of  the  different  shares 
taken  in  severalty  be  unequal."  Such  is  the  rule  as  propounded 
by  Allnatt,  p.  30.  The  consequence  is,  that  the  lienholder,  if  the 
rule  contended  for  is  to  prevail,  will,  in  place  of  the  discretion  of 
men  selected  judicially,  be  thrown  on  the  judgment  of  the  debtor, 
and  will  be  bound  by  the  exercise  of  such  judgment,  in  the  absence 
of  actual  fraud,  whether  such  debtor  be  a  frivolous  person  or  a 
man  of  sense.  In  the  absence  of  controlling  authority  it  is  not 
conceived  why  the  judgment  creditor  should  be  placed  in  a  position 
so  unfavorable. 

There  are  many  other  objections  which,  on  reflection,  will  present 
themselves.  A  partition  would  often  be  of  a  kind  which,  while 
it  would  be  perfectly  fair  and  just  between  the  parties,  and  which, 
therefore,  could  not  consistently  with  established  rules  be  set  aside, 
yet  would  be  quite  ruinous  to  the  interests  of  the  creditor.  For 
example,  in  a  case  where  the  co-tenants  agree  to  divide  between 
themselves  the  rooms  of  a  house:  such  distribution  is  entirely  legal, 
and  if  the  power  to  make  a  voluntary  partition  exists  at  all,  could 
not  be  impeached;  and  yet  such  an  interest,  regarded  as  a  salable 
article  under  an  execution,  might  be  of  little  value.  Conceding 
to  the  judgment  debtor  the  capacity  to  make  voluntary  partition, 
what  is  to  be  done  with  arrangements  of  this  nature?  It  is  obvious 
they  would  be  valid  in  law,  and  they  would  have  to  be  sustained 
against  the  judgment  creditor  or  mortgagee. 

So,  I  think,  this  power  of  partition,  if  it  existed,  would  often  be 
turned  to  purposes  of  fraud  and  vexation.  Suppose  a  creditor  has 
advertised  for  sale,  by  force  of  his  judgment  and  execution,  the 
undivided  interest  of  his  debtor  in  certain  lands,  and  on  the  eve 
of  such  sale  he  should  ascertain  that  his  debtor  has  made  a  division 
of  such  lands  with  the  co-tenants,  which  he  deems  unfair  —  what  is 
his  remedy?  Certainly  a  most  oppressive  and  inefficient  one.  All 
that  he  could  do  would  be  to  stop  his  proceedings  under  his  execu- 
tion, and  file  his  bill  in  equity  to  test  the  fairness  of  such  partition. 
All  persons  can  see  that  such  a  remedy  would  not  often  be  resorted 
to  unless  where  the  unfairness  was  very  gross  and  the  consequent 
loss  to  the  creditor   of  magnitude.     By   such   a   practice  ordinary 


MARKS    V.    SEWALL  467 

frauds  could  be  perpetrated  with  absolute  impunity.  I  have  little 
doubt  that  if  it  Avere  known  that  debtors  have  the  power  which  is 
claimed  by  the  respondents,  that  these  partitions,  unfair  upon  their 
very  face,  would  oftentimes  be  made  in  order  to  procure  a  virtual 
stay  of  execution,  by  driving  creditors,  who  were  about  selling 
under  their  judgments,  into  a  court  of  equity  to  obtain  a  redivision 
of  the  property  before  exposing  it  for  sale. 

All  these  evils  and  iniquities  will  be  avoided  by  holding  that  the 
debtor,  after  mortgage  or  judgment,  cannot  make  a  voluntary  par- 
tition which  will  bind  such  lienholders.  Such  a  doctrine  imposes 
no  hardship  on  the  debtor  and  his  co-tenants.  If  they  desire  a 
separation  of  their  interests  they  can  pursue  the  legal  formulary; 
that  method  is  simple,  expeditious,  and  inexpensive,  and  by  its  use 
the  interest  of  all  parties,  those  of  mortgagees  and  judgment  creditors, 
will  be  protected. 

It  seems  to  me  of  importance  to  establish  this  as  the  legal  course 
of  practice  in  this  State;  and  I  shall,  consequently,  vote  to  reverse 
the  decree  in  the  present  case.^ 

For  reversal  —  Beasley,  C.  J.,  Dalrimple,  Depue,  Scudder,  Van 
Syckel,  Woodhull,  Lathrop  —  7. 

For  affirmance  —  Dixon,  Knapp,  Clement,  Lilly  —  4. 


MAEKS  V.  SEWALL  AXD  OTHEKS 
120  Mass.  174.     1876. 

Appeal  by  David  L.  Marks  from  the  decree  of  the  Probate  Court 
accepting  the  report  of  the  commissioners  appointed  to  make  parti- 
tion of  the  real  estate  of  Moses  B.  Sewall,  deceased,  and  confirming 
and  establishing  the  partition. 

At  the  hearing  before  Morton,  J.,  it  appeared  that  Moses  B.  Sewall 
died  in  March,  3  872,  seised  of  the  following  among  other  parcels  of 
real  estate:  A  lot  of  vacant  land  on  High  Street,  Boston,  containing 
4875  square  feet  valued  at  $97,500,  and  a  lot  of  land  with  buildings 
thereon  on  Monument  Avenue,  Charlestown,  containing  3177  square 
feet,  valued  at  $12,500. 

1  And  see  Simmons  v.  Gordon,  98  Miss.  316. 

Contra.  Williamn  College  v.  Mallett,  12  Me.  398;  Bavington  v.  Clarke, 
2  Pen.  &  W.  (Pa.)  115;  Long's  Appeal,  77  Pa.  151;  Port  v.  Parfit,  4  Wash. 
369.  Sec  Staples  v.  Bradley.  23  Conn.  167;  Manley  v.  Petlee,  38  111.  128; 
Torrey  v.  Cook,  116  Mass.  163.  ^ 

Compare  cases  on  compulsory  partition.  Beits  v.  \yard.  196  Ala.  248, 
257  (statute);  Loomis  v.  Riley,  24  111.  307;  IIawe.-<  v.  Na.wn,  HI  Me.  193 
(.statute);  Thrmton  v.  Minke,  32  Md.  571.  574;  Colton  v.  Smith,  11  Pick. 
(Mass.)  311;  Hunt  v.  Meeker  County  Co.,  135  Minn.  134;  Jack.^on  v.  Pierce, 
10  Johns.  (N.  Y.)  415;  Hanvood  v.  Kirby,  1  Paige  (N.  Y.)  469;  Ukase  Inv. 
Co.  v.  Smith,  92  Oreg.  337;  Wright  v.  Strothcr,  76  Va.  857;  Sinclair  v.  Jatms, 
[1894]  3  Ch.  554. 


468  MARKS    V.    SEWALL  [CHAP.    VII 

Sewall  left  as  his  heirs  four  daughters,  Mary  F.  Wales,  wife  of 
T.  C.  Wales,  Annie  L.  Sewall,  Linnie  P.  Sewall  and  Lilla  M.  Sewall, 
and  two  sons,  Charles  H.  Sewall  and  George  P.  Sewall.  Charles- 
town  became  a  part  of  Boston,  by  annexation,  on  January  1,  1874. 

Charles  H.  Sewall,  on  February  1,  1873,  mortgaged  to  David  L. 
Marks  an  undivided  sixth  part  of  the  estate  on  High  Street,  Boston, 
the  same  being  described  by  metes  and  bounds,  as  security  for  the 
payment  of  his  note  for  $10,000,  payable  in  five  years  from  date, 
with  interest  quarterly,  at  the  rate  of  seven  per  cent,  per  annum,  and 
on  the  same  date  Marks  executed  an  instrument  recorded  with  the 
mortgage,  wherein  he  recited  the  mortgage  and  declared  that  the  note 
and  mortgage  were  held  by  him  in  trust  that  Charles  H.  Sewall 
should  pay  him  for  the  support  and  maintenance  of  Ellen  M.  Sewall, 
wife  of  Charles  H.,  and  daughter  of  said  Marks,  and  for  the  support 
and  maintenance  of  the  infant  daughter  of  Charles  H.  and  Ellen  M. 
Sewall,  during  their  lives  or  the  life  of  either  of  them,  the  sum  of 
$700  per  annum,  in  quarterly  payments,  and  to  secure  to  Mrs.  Sewall 
the  care  and  custody  of  their  child. 

On  April  22,  1874,  the  Probate  Court  appointed  commissioners  to 
make  partition  of  all  the  real  estate  of  Moses  B.  Sewall,  which  any 
party  interested  should  require  to  have  included  in  the  partition 
among  the  heirs  aforesaid,  and  they  reported  as  follows :  "  Whereas 
the  said  lot  of  land,  situated  on  High  Street  in  the  city  of  Boston, 
is  of  greater  value  than  the  share  of  either  party,  and  cannot  in  our 
judgment  be  divided  without  damage  to  the  owners,  and  whereas 
George  P.  Sewall,  Mary  F.  Wales,  Annie  L.  Sewall,  Linnie  P.  Sewall 
and  Lilla  M.  Sewall  are  willing  to  have  said  lot  of  land  set  off  to  them 
together,  and  to  pay  to  Charles  H.  Sewall  such  sum  of  money  as 
may  be  awarded :  we  have  set  off  and  assigned  to  the  said  George  P. 
Sewall,  Mary  F.  Wales,  Annie  L.  Sewall,  Linnie  P.  Sewall  and  Lilla 
M,  Sewall,  the  said  lot  of  land  situated  on  High  Street,  in  said  city 
of  Boston,  to  be  held  by  them  in  common,  but  separate  from  the 
share  of  Charles  H.  Sewall,  and  we  have  awarded  that  they  shall  pay 
to  the  said  Charles  H.  Sewall  the  sum  of  $5833.33  to  make  the  parti- 
tion just  and  equal.  And  we  have  set  off  and  assigned  to  the  said 
Charles  H.  Sewall  said  lot  of  land,  situated  in  that  part  of  said  city 
of  Boston  which  was  recently  the  city  of  Charlestown,  Charles  H. 
Sewall  to  receive  from  the  said  George  P.  Sewall,  Mary  F.  Wales, 
Annie  L.  Sewall,  Linnie  P.  Sewall  and  Lilla  M.  Sewall,  the  sum  of 
$5833.33,  to  make  the  partition  just  and  equal."  Their  report  was 
accepted,  November  11,  1874,  and  the  partition  confirmed  and  estab- 
lished. From  this  decree  David  L.  Marks  appealed,  and  assigned 
the  following  reasons : 

"  Because  the  decree  did  not  set  off  to  said  Marks  his  interest  in 
the  High  Street  estate,  or  award  payment  in  money  therefor;  and 
because  the  money  awarded  by  the  commissioners  had  not  been  paid 
to  said  Marks,  he  being  entitled  thereto,  or  secured  to  his  satisfaction, 
or  to  the  satisfaction  of  the  Probate  Court." 


MARKS    V.    SEW  ALL  469 

It  appeared  that  the  heirs  to  whom  the  High  Street  estate  was 
set  off  were  able  to  pay  the  value  of  Charles  H.  Sewall's  interest 
therein,  in  case  partition  of  that  estate  by  itself  should  be  made,  the 
entire  estate  set  off  to  them,  and  it  should  be  awarded  that  the  value 
of  Charles  H.  Sewall's  interest  should  be  paid  in  money.  Further  it 
appeared  that  Charles  H.  Sewall  had  refused  and  still  refused  to 
agree  to  the  substitution  of  any  other  security  on  the  note  given  by 
him  to  Marks. 

Upon  these  facts  the  judge  afhrmed  the  decree  of  the  Probate 
Court,  and  upon  request  of  Marks,  reported  the  case  for  the  con- 
sideration of  the  full  court. 

Devens,  J.  It  is  conceded,  as  a  general  proposition,  that  a  tenant 
in  common,  as  against  his  co-tenants,  cannot  convey  his  interest  in  a 
specified  parcel  of  the  lands  held  in  common.  Adam  v.  Briggs  Iron 
Co.,  7  Cush.  361,  and  authorities  cited.  It  is,  however,  argued 
that,  as  Avhen  the  conveyance  was  made  by  Charles  H.  Sewall,  it 
purported  to  convey  his  interest  in  the  High  Street  estate,  which  was 
all  the  land  then  lying  in  the  county  of  Suffolk,  and  that  as  it  was 
then  in  the  power  of  the  judge  of  probate  to  have  issued  a  separate 
warrant  and  caused  a  separate  partition  to  have  been  made  of  the 
lands  lying  in  that  county,  (Gen.  Sts.  c.  136,  §  50.)  the  conveyance 
may  here  be  treated  as  valid  against  the  co-tenants.  But  it  was 
in  the  power  of  the  Probate  Court  then,  by  one  commission,  to  have 
made  partition  of  all  the  real  estate  lying  within  the  state,  (Gen. 
Sts.  c.  136,  §  48,)  and  at  the  time  when  the  coimnission  was  actually 
issued,  both  parcels  which  were  to  be  divided  had,  by  the  annexation 
of  territory  of  Charlestown,  become  a  part  of  the  county  of  Suffolk. 
The  mere  fact  that,  but  for  the  occurrence  of  this  latter  contingency, 
the  Probate  Court  could  have  divided  the  lands  of  the  deceased  by 
separate  commissions,  does  not  entitle  the  appellant  to  claim  that 
he  would  then  have  had,  or  that  he  now  has,  a  right  to  have  the 
High  Street  estate  separately  divided. 

If,  as  against  the  co-tenants,  the  mortgage  made  by  Charles  H. 
Sewall  is  invalid,  the  court  should  not  refuse  to  confirm  the  decree 
for  partition.  While  the  court  may,  for  sufficient  reason,  set  aside 
the  return  of  the  commissioners  and  recommit  the  case,  (Gen.  Sts.  c. 
136,  §  74,)  yet  the  reason  for  so  doing  should  be  because  there  is 
some  objection  to  the  return  as  made,  and  not  because  one  might  be 
made  which  would  facilitate  other  proceedings  before  another  tri- 
bunal by  the  appellant  against  Sewall.  If,  treating  the  mortgage 
as  invalid,  the  partition  is  a  fair  and  just  one,  it  should  be  confirmed. 

Nor,  if  the  partition  is  thus  confirmed,  is  the  appellant  entitled 
to  have  the  sum  of  $5833.33  (which  is  the  amount  in  money  to  be 
paid  to  Charles  H.  Sewall)  first  paid  or  secured  to  him.  It  is  a  part 
indeed  of  the  proceeds  of  that  portion  of  his  inheritance  which 
Sewall  assumed  to  convey  to  the  appellant ;  but  if  the  mortgage  be 
invalid  as  to  them,  the  co-tenants  have  the  right  here  to  have  the 


470  MARKS    V.    SEWALL  [CHAP.   VII 

partition  confirmed  witlxovit  regard  to  any  relations  wliicli  may  exist 
between  Sewall  and  the  appellant.  Decree  affirmed.^ 

"Joint  Ownership  in  Peksonal  Pkoperty.  —  Personal  property  may  be 
held  jointly  or  in  common.  There  is  of  course  no  interest  corresponding 
to  coparcenary  in  real  estate.  A  conveyance  of  personal  property  to  two 
or  more  simply  makes  them  joint  owners;  but  there  are  special  rules  as  to 
partners  and  the  owners  of  ships.  The  modern  Statutes  which  declare  that 
a  conveyance  to  two  or  more  shall  presumptively  be  taken  to  create  a  ten- 
ancy  in   common,   have    sometimes  no    application    to   personal    property. 

"  Each  joint  owner  or  owner  in  common  of  a  chattel  personal  has  a  right 
to  the  possession,  and  no  action  of  trespass  or  trover  lies  against  him  at 
the  suit  of  his  co-owner  for  taking  or  keeping  possession  of  it.  [Hamby  v. 
Wall,  48  Ark.  135;   Doyle  v.  Bush,  86  S.  E.   (N.  C.)    165.] 

"  But  I.  It  seems  that  trespass  will  lie  by  an  o\vner  in  common  of  a 
chattel  personal  against  his  co-tenant  for  the  destruction  of  the  chattel.  See 
Co.  Lit.  200  a. 

"  II.  Trover  lies  at  the  suit  of  an  owner  in  common  of  a  chattel  per- 
sonal against  his  co-owner  for  so  dealing  with  the  chattel  as  to  render  any 
future  use  of  the  chattel  by  the  plaintiff  impossible.  See,  for  example, 
Needham  v.  Hill,  127  Mass.  133  (1879).  The  cases  are  collected  Freem. 
Co-ten.  §§  306,  307,  312-318.     [Hcnnes  v.  Hehard,   169  Mich.  670.1 

"  III.  Whether  a  sale  of  a  chattel  personal  by  an  owner  in  common,  who 
represents  himself  as  the  sole  owner  and  professes  to  pass  the  title  to  the 
whole  chattel,  be  a  conversion,  is  a  question  which  has  been  much  mooted. 
The  weight  of  authority  in  the  United  States  is  in  the  affirmative.  See  the 
cases  collected  in  Freem.  §§  308-311.  [Johnson  v.  McFry,  68  So.  (Ala.)  716; 
Howton  V.  Mathias,  73  So.  (Ala.)  92;  Merrill  v,  Mason,  159  Mo.  App.  605; 
Goodrich  v.  Chappell,j^O  Vt.  263.1 

"  IV.  If  there  are  owners  in  common  of  chattels  of  the  same  quality  and 
readily  divisible,  such  as  grain,  it  is  commonly  held  in  America  that  one  of 
them  may  claim  the  right  to  take  his  share,  and  if  he  is  refused,  may  main- 
tain trover,  —  see  2  Kent  Com.  (12th  ed.)  365,  note  1;  Freem.  §  252;  Lob- 
dell  V.  Stowell,  51  N.  Y.  70  (1872),  — or  even  replevin.  Young  v.  Miles,  20 
Wis.  615  (1866)  ;  Piazzek  v.  White,  23  Kans.  621  (1880).  [Halsey  v.  Simmons, 
85  Oreg.  324 ;  37  L.  R.  A.  n.  s.  267  note.] 

"  There  is  no  mode  of  obtaining  partition  of  chattels  personal  at  law, 
unless  replevin  of  grain,  &c.  (see  IV.  supra),  be  so  considered.  A  bill  in 
equity  for  partition  of  personal  chattels  is  allowed  at  the  present  day  in 
many  of  the  States;  the  fir.st  time  such  a  bill  was  sustained  seems  to  have 
been  Smith  v.  Smith,  4  Rand.  95  (1826).  See  Freem.  §  426."  [Muldrow  v. 
Mixon,  89  S.  C.  551;  27  L.  R.  A.  n.  s.  618  note.]— 6  Gray,  Cas.  on  Prop., 
2d  ed.,  p.  580.     [The  citations  in  brackets  are  by  the  editor.] 

1  So  Stewart  v.  Allegheny  National  Bank,  101  Pa.  342.  But  see  Whitton 
V.  Whitton,  38  N.  H.  127;  Green  v.  Arnold,  11  R.  I.  364.  Compare  Huffman 
V.  Darling,  153  Ind.  22;  King  v.  King,  182  Ky.  665;  Jordan  v.  Faulkner,  168 
N.  C.  466;  Holley  v.  White,  172  N.  C.  77;  Kennedy  v.  Boykin,  35  S.  C.  61; 
Ea^ly  v.  Easly,  78  Wash.  505;  Helmick  v.  Kraft,  84  W.  Va.  159;  note,  ante, 
p.  427. 


CHAPTEE   YIII 
CREATION  OF  EASEMENTS  AND  PROFITS  i 

SECTION  I 

BY   IMPLICATION 

SAUNDEYS  r.  OLIFF 
Moore  467.     1597. 

Trespass.  The  defendant  prescribes  for  connnoii,  and  counts  that 
one  Verny,  Knight,  was  seised  in  fee  of  the  messuage  and  place  where 
&c.  and  that  he  granted  the  messuage  with  all  the  commons  appurte- 
nant; and  avers  that  all  the  tenants  of  the  messuage  have  used  to 
have  common  in  the  place  where  &c.  And  it  is  adjudged  against 
him  who  so  prescribed,  because  there  appears  to  have  been  unity  of 
possession  of  the  messuage  and  of  the  Lower  Cow  Pasture,  (being 
the  place  where  &c.,)  in  Verny,  in  which  case  the  common  is  extinct, 
and  then  cannot  pass  by  words  of  common  appurtenant  and  regard- 
ing the  messuage.-  But  "  all  commons  usually  occupied  with  the 
messuage  "  would  have  passed  such  common  as  the  first  was. 


NICHOLAS  V.  CHAMBEELAIN 

Cro.  Jac.  121.     1606. 

Trespass.  It  was  held  by  all  the  court  upon  demurrer.  That  if 
one  erect  a  house,  and  build  a  conduit  thereto  in  another  part  of  his 
land,  and  convey  water  by  pi])es  to  the  house,  and  afterward  sell  the 
house  with  the  appurtenances,  excepting  the  land,  or  sell  the  laud 
to  another,  reserving  to  himself  the  house,  the  conduit  and  pipes 
pass  with  the  house;  because  it  is  necessary,  et  quasi  appendant 
thereto;  and  he  shall  have  liberty  by  law  to  dig  in  the  land  for 
amending  the  pipes,  or  making  them  new,  as  the  case  may  require. 
So  it  is,  if  a  lessee  for  years  of  a  house  and  land  erect  a  conduit 
upon  the  land,  and,  after  the  term  determines,  the  lessor  occupies 
them  together  for  a  time,  and  afterwards  sells  the  house  with  the 
appurtenances  to  one,  and  the  land  to  another,  the  vendee  shall  have 
the  conduit  nnd  the  pipes,  and  liberty  to  amend  them. 

1  See  Warrrn,  Cas.  on  Prop.,  pp.  751-787. 

2  But  spp  Thnmns  v.  Owen,  20  Q.  B.  D.  225,  231-232;  Hansford  v.  J  ago, 
[1921]  1  Ch.  322-331. 

471 


472  PACKER    V.    WELSTED  [CHAP.   VIII 

But  by  PoPHAM,  Chief  Justice,  if  the  lessee  erect  such  a  conduit, 
and  afterward  the  lessor,  during  the  lease,  sell  the  house  to  one,  and 
the  land  wherein  the  conduit  is  to  another,  and  after  the  lease  de- 
termines; he  who  hath  the  land  wherein  the  conduit  is,  may  disturb 
the  other  in  the  using  thereof,  and  may  break  it;  because  it  was  not 
erected  by  one  who  had  a  permanent  estate  or  inheritance,  nor  made 
one  by  the  occupation  and  usage  of  them  together  by  him  who  had 
the  inheritance.  So  it  is,  if  a*  disseisor  of  an  house  and  land  erect 
such  a  conduit,  and  the  disseisee  re-enter,  not  taking  conusance  of 
any  such  erection,  nor  using  it,  but  presently  after  his  re-entry  sells 
the  house  to  one,  and  the  land  to  another;  he  who  hath  the  land, 
is  not  compellable  to  suffer  the  other  to  enjoy  the  conduit.  —  But 
in  the  principal  case,  by  reason  of  the  mispleading  therein,  there  was 
not  any  judgment  given. 


CLAEK  V.  COGGE 
Cro.  Jac.  170.    1607. 

Trespass.  Upon  demurrer  the  case  was.  The  one  sells  land,  and 
afterwards  the  vendee,  by  reason  thereof,  claims  a  way  over  part  of 
the  plaintiff's  land,  there  being  no  other  convenient  way  adjoining: 
and,  Whether  this  were  a  lawful  claim?  was  the  question. 

And  it  was  resolved  without  argument,  that  the  way  remained,  and 
that  he  might  well  justify  the  using  thereof,  because  it  is  a  thing  of 
necessity ;  for  otherwise  he  could  not  have  any  profit  of  his  land : 
et  e  converso,  if  a  man  hath  four  closes  lying  together,  and  sells  three 
of  them,  reserving  the  middle  close,  and  hath  not  any  way  thereto  but 
through  one  of  those  which  he  sold,  although  he  reserved  not  any 
way,  yet  he  shall  have  it,  as  reserved  unto  him  by  the  law;  and  there 
is  not  any  extinguishment  of  a  way  by  having  both  lands.  Where- 
fore it  was  adjudged  accordingly  for  the  defendant.^ 


PACKEE  V.  WELSTED 
2  Sid.  39,    111.    1658. 

Special  verdict.  There  are  three  parcels  of  land,  and  the  necessary 
and  private  way  is  out  of  the  first  parcel  to  the  second,  and  out  of  the 
first  two  parcels  to  the  third  parcel.  J.  S.  purchases  all  these  parcels, 
and  then  aliens  the  first  two  of  these  parcels  to  J.  'N.,  and  the  ques- 
tion was,  if  he  shall  have  a  way  over  the  first  two  parcels  to  his 
third  parcel.    The  jurors  also  found  that  the  alienation  was  by  feoff- 

1  See  Howton  v.  Frearson,  8  T.  R.  50;  1  Wms.  Saunders  323,  note  6. 


SECT.    l]  PALMER    V.    FLETCHER  473 

merit,  and  that  there  was  no  other  way  to  come  to  the  land  not 
aliened  but  by  the  other  land. 

Glyn,  C.  J.  If  one  has  a  highway  on  his  land  and  makes  a  feoff- 
ment of  the  land,  yet  can  he,  as  subject  of  the  King,  use  the  way. 
But  our  case  is  of  a  private  way,  which,  as  the  case  is,  cannot  be 
called  a  way  properly,  because  it  was  to  be  taken  on  his  own  land. 
But  the  jurors  having  found  it  to  be  of  necessity,  it  seems  to  me  that 
the  way  remains,  for  it  is  not  only  a  private  inconvenience,  but  it  is 
also  to  the  prejudice  of  the  public  weal,  that  land  should  lie  fresh 
and  unoccupied;  and  so  has  been  the  opinion  of  the  Lord  Rolles,  as 
I  hear  on  the  circuit  at  Winchester. 

And  the  defendant  can  take  a  convenient  way  without  the  leave  of 
the  plaintiff  and  the  law  can  then  adjudge  if  it  is  convenient  and 
sufficient  [vel  pluis  ou  nemy]  and  by  all  the  court  judgment  was 
given  for  the  defendant  that  the  unity  had  not  destroyed  the  way, 
but  that  the  way  continues. 


PALMER  V.  FLETCHER 
1  Lev.  122.    1663. 

Case  was  brought  for  stopping  of  his  lights.  The  case  was,  A 
man  erected  a  house  on  his  own  lands,  and  after  sells  the  house  to 
one,  and  the  lands  adjoining  to  another,  who  by  putting  piles  of 
timber  on  the  land,  obstructed  the  lights  of  the  house :  And  'twas 
resolved.  That  although  it  be  a  new  messuage,  yet  no  person  who 
claims  the  land  by  purchase  under  the  builder,  can  obstruct  the 
lights  any  more  than  the  builder  himself  could,  who  cannot  derogate 
from  his  own  grant,  by  Twysden  and  Wyndham,  Justices,  Hyde 
being  absent,  and  Kelynge  doubting.  For  the  lights  are  a  neces- 
sary and  essential  part  of  the  house.  And  Kelyn(;e  said.  Suppose 
the  land  had  been  sold  first,  and  the  house  after,  the  vendee  of  the 
land  might  stop  the  lights.  Twysden  to  the  contrary  said,  Wliether 
the  land  be  sold  first  or  afterward,  the  vendee  of  the  land  cannot 
stop  the  lights  of  the  house  in  the  hands  of  the  vendor  or  his  as- 
signees; and  cited  a  case  to  be  so  adjudged;  but  all  agreed,  that  a 
stranger  having  lands  adjoining  to  a  messuage  newly  erected,  may 
stop  the  lights;  for  the  building  of  any  man  on  his  lands,  cannot 
hinder  his  neighbor  from  doing  what  he  will  with  his  own  lands; 
otherwise  if  the  messuage  be  ancient,  so  that  he  has  gained  a  right 
in  the  lights  by  prescription.  And  afterwards  in  Mich.  16  Car.  2, 
B.  R.  a  like  judgment  was  given  between  the  same  parties,  for  erect- 
ing a  building  on  another  part  of  the  lands  jnirchased,  whereby  the 
lights  of  another  new  messuage  were  obstructed.* 

*  s.  c.  sub  nom.  Palmer  v.  Fleshees,  1  Sid.  167.  See  Compton  v. 
Richard,-^,  1  Price  27;  Righy  v.  Bennett,  21  Ch.  D.  559;  Birmingham,  etc. 
Banking   Co.,  v.   Ross.   38   Ch.   D.   295. 


474  PINNINGTON    V.    GALLAND  [CHAP.   VIII 

PINNINGTON  V.  GALLAI^D 
9  Ex.  1.    1853. 

Martin,  B.'^  This  is  a  special  case,  wliicli  was  argued  before  us 
during  the  last  term;  and  the  question  is,  whether  the  plaintiff,  aa 
occupier  of  two  closes  called  the  Rye  Holme  closes,  is  entitled  to  a 
right  of  way  over  certain  lands  of  the  defendant. 

The  material  circumstances  are  these:  In  the  year  1839  a  prop- 
perty  consisting  of  five  closes  belonged  to  a  Mr.  Dickinson.  Two  of 
them  were  the  Rye  Holme  closes,  and  they  were  separated  by  two  of 
the  others  from  the  only  available  highway,  the  Town-street  of 
Sutton-upon-Trent.  From  the  year  1823  the  road  over  which  the 
plaintiff  now  claims  the  right  of  way  was  that  which  was  used  by 
Mr.  Dickinson's  tenant  for  the  occupation  of  the  Rye  Holme  closes. 
From  a  plan,  which  forms  part  of  the  case,  the  road  appears  to  be 
the  shortest  and  most  direct  access  from  the  highway  to  the  closes; 
and  it  having  been  used  for  so  many  years  by  the  tenant  who  occu- 
pied the  entire  property,  we  think  we  may  safely  conclude  that  it 
was,  and  is,  the  most  convenient  road. 

In  1839  the  property  was  sold  by  Mr.  Dickinson  in  three  lots.  A 
Mr.  Moss  purchased  the  Rye  Holme  closes,  a  Mr.  Newboult  pur- 
chased one  of  the  other  closes,  and  a  Mr.  Dearie  purchased  the  re- 
mainder of  the  property,  which  includes  that  now  belonging  to  the 
defendant,  and  over  which  the  way  in  question  goes.  The  deeds 
of  conveyance  to  the  three  purchasers,  although  bearing  different 
dates,  were  all  executed  on  the  same  day,  the  8th  of  April,  1840, 
and  it  cannot  now  be  ascertained  in  what  order  of  priority  they  were 
executed.  No  special  grant  or  reservation  of  any  particular  way  is 
contained  in  any  of  them;  but  in  the  conveyance  to  Mr.  Moss,  whose 
tenant  the  plaintiff  is,  there  is  comprised  the  usual  words,  "  together 
with  {infer  alia)  all  ways,  roads,  paths,  passages,  rights,  easements, 
advantages,  and  appurtenances  whatsoever  to  the  said  closes  belong- 
ing, or  in  any  way  appertaining."  Mr.  Dearie  executed  the  deed 
of  conveyance  to  him. 

For  several  years  after  the  execution  of  the  conveyances,  the  occu- 
pier of  the  Rye  Holme  closes  continued  to  use  the  road  in  question; 
but  in  1843  the  defendant,  who  had  purchased  from  Mr.  Dearie  part 
of  the  land  conveyed  thus  by  Mr.  Dickinson,  and  over  which  the  Avay 
in  question  goes,  disputed  the  plaintiff's  right  to  use  it.  Attempts 
were  made  for  arrangement,  which  failed,  and  we  are  now  required 
to  decide  the  point ;  and  we  are  of  opinion  that  the  plaintiff,  as  occu- 
pier of  the  Rye  Holme  closes,  is  entitled  to  the  right  of  way  claimed. 

It  is  impossible  to  ascertain  the  priority  of  the  execution  of  the 
two  conveyances  (that  to  the  third  purchaser  may  be  put  out  of  con- 
sideration), and  the  plaintiff,  having  to  establish  his  right,  is  bound 

^  Only  the  opinion  is  here  given. 


SECT.    l]  PINNINGTON    V.    GALLAND  475 

to  show  that,  whichever  was  the  first   executed,  he  nevertheless  is 
entitled  to  the  right  of  way. 

First,  assume  that  the  conveyance  to  Mr.  Moss  was  executed  he- 
fore  that  of  Mr.  Dearie.  In  this  ease  there  would  clearly  be  the  right 
of  way.  It  is  the  very  case  put  by  Mr.  Serjt.  Williams  in  his  note 
to  Pomfret  v.  Ricroft,  1  "Wms.  Saund.  323,  viz.,  "  where  a  man  hav- 
ing a  close  surrounded  with  his  land,  grants  the  close  to  another  in 
fee^  for  life,  or  for  years,  the  grantee  shall  have  a  way  over  the 
grantor's  land,  as  incident  to  the  grant,  for  without  it  he  cannot 
have  any  benefit  from  the  grant,"  and  the  way  would  be  the  most 
direct  and  convenient,  which  we  think  we  may  properly  assume 
the  one  in  question  in  the  present  case  to  be.  This  is  founded  upon 
the  legal  maxim,  "  Quando  aliquis  aliquid  concedit,  concedere  videtur 
et  id  sine  quo  res  concessa  uti  non  potest,"  which,  thougli  it  be 
clearly  bad  Latin,  is,  we  think,  good  law. 

Secondly,  assume  that  the  conveyance  to  Mr.  Dearie  was  executed 
the  first.  In  this  case  the  Rye  Holme  closes  were  for  a  short  period 
of  time  the  property  of  Mr.  Dickinson,  after  the  property  in  the 
land  conveyed  to  Mr.  Dearie  had  passed  out  of  him.  There  is  no 
doubt,  apparently,  a  greater  difficulty  in  holding  the  right  of  way 
to  exist  in  this  case  than  in  the  other;  but  according  to  the  same 
very  great  authority,  the  law  is  the  same,  for  the  note  proceeds  thus : 
"  So  it  is  when  he  grants  the  land  and  reserves  the  close  to  himself ;  " 
and  he  cites  several  authorites  which  fully  bear  him  out :  ClarJc  v. 
Cogge,  Cro.  Jac.  170;  Staple  v.  Heydon,  6  Mod.  1;  Chichester  v, 
Lethhridge,  "Willes,  72,  note.  It  no  doubt  seems  extraordinary  that 
a  man  should  hav<3  a  right  which  certainly  derogates  from  his  own 
grant;  but  the  law  is  distinctly  laid  down  to  be  so,  and  probably  for 
the  reason  given  in  Dutton  v.  Taylor,  2  Lutw.  1487,  that  it  was  for 
the  public  good,  as  otherwise  the  close  surrounded  would  not  be 
capable  of  cultivation. 

According  to  this  law,  therefore,  the  right  of  Avay  would  accrue  to 
Mr.  Dickinson  upon  the  execution  of  the  conveyance  to  Mr.  Dearie, 
and  it  would  clearly  pass  to  Mr.  Moss  under  his  conveyance,  for  it 
would  be  a  way  appurtenant  to  the  Eye  Holme  closes,  and  would 
pass  under  the  words  "all  ways  to  the  closes  belonging  or  appertain- 
ing," and,  indeed,  probably  without  them.  The  plaintiff  has  vested 
in  him,  as  Mr.  Moss's  tenant,  all  his  rights  of  way;  and,  for  the  above 
reason,  we  think  that  he  is  entitled  to  the  judgment  of  the  court. 

There  is  a  statement  in  the  case  respecting  another  road  described 
in  the  plan  as  from  C  to  D,  which  the  defendant  contends  was  the 
plaintiff's  proper  way.  But  it  is  perfectly  clear,  that,  whatever  may 
be  the  rights  of  the  occupiers  or  owners  of  the  two  closes  further  to 
the  east,  called  Maples  and  Catliffe  closes,  and  which  were  sold  and 
conveyed  by  Mr.  Dickinson  before  the  sales  to  Mr.  Moss  and  Mr. 
Dearie,  Mr.  Moss  or  the  plaintiff  his  tenant,  upon  the  statement  in 
the  present  case,  has  no  right  to  the  use  of  it;  and,  except  by  one  or 


47G  HILDRETH    V.   GOOGINS  [CHAP.   VIII 

other  of  the  roads,  the  case  states  that  the  plaintiff  could  not  get  to 
the  Rye  Holme  closes  without  being  a  trespasser  upon  land  other 
than  Mr.  Dickinson's.  Judgment  for  the  plaintiff.^ 


HILDRETH  v.  GOOGINS 

91  Me.  227.     1898. 

On  motion  and  exceptions  by  defendant. 

The  case  appears  in  the  opinion, 

Strout,  J.  The  controversy  in  this  case,  is  whether  there  is  a 
right  of  way  from  the  lot  of  land  occupied  by  the  defendant  at  Old 
Orchard  as  tenant  of  the  heirs  of  'William  Emery,  over  and  across 
the  plaintiff's  land  to  the  street,  as  appurtenant  to  defendant's  lot. 
At  the  trial  below  the  right  of  way  was  claimed  first  by  deed,  second 
by  prescription,  and  third  by  necessity.  The  evidence  failed  to  sus- 
tain either  of  the  first  two  claims  and  they  are  abandoned  here.  But 
it  is  strenuously  contended  that  a  way  of  necessity  exists  from  defend- 
ant's lot,  across  that  of  plaintiff. 

Lawrence  Barnes  on  June  15,  1871,  owned  in  one  tract  the  land, 
part  of  which  is  now  owned  by  the  plaintiff,  and  part  by  the  heirs  of 
William  Emery.  On  that  day  he  conveyed  to  one  Seavey  that  part 
of  the  land  now  occupied  by  defendant.     William  Emery  derived 

1  See  Ellis  v.  Bliie  Mt.  Forest  Assn,  69  N.  H.  385;  Valley  Falls  Co.  v. 
Dolan,  9  R.  I.  489;  Dacics  v.  Sear,  L.  R.  7  Eq.  427;  8  L.  R.  A.  n.  s.  327 
note. 

As  to  the  location  of  a  way  of  necessity,  see  Ritchey  v.  Welsh,  149  Ind. 
214;  Herrin  v.  Sieben,  46  Mont.  226;  Fritz  v.  Tompkins,  168  N.  Y.  524,  532. 

A  right  of  a  way  of  necessity  does  not  arise  when  the  land  is  acquired 
by  escheat,  Proctor  v.  Hodgson,  10  Ex.  824.  Nor  when  it  is  taken  by  con- 
demnation proceedings,  Banks  v.  School  Directors,  194  111.  247;  but  see 
^  Cleveland  Ry.  Co.  v.  Smith,  177  Ind.  524. 

On  creation  or  reservation  of  way  of  necessity  when  land  is  taken  on 
execution,  see  Damron  v.  Damron,  119  Ky.  806;  Fernam  v.  Wead,  2  Mass. 
203;  Rmsell  v.  Jackson,  2  Pick.  (Mass.)  574;  -Schmidt  v.  Quinn,  136  Mass. 
575.  Compare  Assets  Inv.  Co.  v.  Hollingshcad,  200  Fed.  Rep.  551;  Bean 
V.  Bean,  163  Mich.  379;  Kiefjer  v.  Imhoff,  20  Pa.  438;  Proud joot  v.  Saffle, 
62  W.  Va.  51;  12  L.  R.  A.  n.  s.  482  note.  On  grant  by  the  government, 
see  United  States  v.  Rindge,  208  F.  R.  611;  Herrin  v.  Sieben,  46  Mont.  226; 
Fame  v.  Coal  Creek  Co.,  90  Tenn.  619. 

A  grantor  is  not  debarred  from  having  a  way  of  necessity  because  his 
<^  deed  has  a  covenant  for  warranty.  Jay  v.  Michael,  92  Md.  198;  Brigham 
V.  Smith,  4  Gray  (Mass.)  297;  A^.  Y.  &  N.  E.  R.  R.  v.  Railroad  Commis- 
sioners, 162  Mass.  81.  Compare  Reed  v.  Blum,  215  Mich.  247;  Bennett  v. 
Booth,  70  W.  Va.  264. 

As  to  what  evidence  is  admissible  to  rebut  the  implication  of  a  way  of 
necessity,  see  Greenwood  v.  West,  171  Ala.  463;  Seeley  v.  Bishop,  19  Conn. 
128;  Leeb7is  v.  Boston,  21  Ky.  Law  Rep.  411;  Doten  v.  Bartlett,  107  Me. 
351;  Orpin  v.  Morrison,  230  Mass.  529;  Ewert  v.  Burtis,  12  Atl.  (N.  J.) 
893;  Bascom  v.  Cannon,  158  Pa.  225. 


SECT.    l]  HILDRETH    V.    GOOGINS  477 

title  under  tliis  deed  tlirougli  mesne  conveyances.  Barnes'  deed  to 
Seavey  did  not  contain  any  grant  of  a  right  of  way  across  Barnes' 
remaining  land.  Plaintiff  derives  his  title  through  deed  from  Barnes 
to  Francis  Milliken,  dated  October  16,  1879,  and  mesne  conveyances. 
The  land  owned  by  the  Emery  heirs  is  bounded  on  one  side  by  the 
ocean,  ^o  access  to  it  from  the  street  can  be  had,  except  by  the 
ocean  or  crossing  land  of  other  owners.  Under  these  circumstances 
it  is  claimed  that  the  conveyance  by  Barnes  to  Seavey  implied  a 
grant  of  a  way  over  and  across  the  plaintiff's  lot,  then  owned  by 
Barnes,  as  appurtenant  to  defendant's  lot. 

"  Implied  grants  of  this  character  are  looked  upon  with  jealousy, 
construed  with  strictness,  and  are  not  favored,  except  in  cases  of 
strict  necessity,  and  not  from  mere  convenience."  Kingsley  v.  Land 
Improvement  Co.,  86  Maine,  280.  In  that  case  it  was  held  by  this 
court,  that  as  free  access  to  the  land  over  public  navigable  waters 
existed,  a  way  by  necessity  over  the  grantor's  land  could  not  be 
implied.  The  same  rule  applies  here.  Defendant's  land  borders  on 
the  ocean,  a  public  highway,  over  which  access  to  her  land  from  the 
street  can  be  had.  It  may  not  be  as  convenient  as  a  passage  by  land, 
but  necessity  and  not  convenience  is  the  test.  Warren  v.  Blake,  54 
Maine,  276;  DoJUjf  v.  B.  &  M.  R.  R.,  68  Maine,  176;  Stevens  v. 
Orr,  69  Maine,  324.  There  is  no  evidence  in  the  case  that  the  water 
way  is  unavailable.  The  court  instructed  the  jury  that  the  ocean 
was  a  public  highway,  and  to  a  question  by  a  juror,  "  whether  the 
ocean  was  a  public  highway,  if  it  was  not  available,  and  whether  it 
was  for  the  jury  to  decide  whether  it  is  available  in  the  present 
ease,"  the  court  replied,  "  that  if  there  was  any  evidence  as  to  avail- 
ability it  was  for  them  to  decide;  but  if  there  was.no  evidence,  they 
must  assume  that  it  was  available."  They  were  further  instructed 
"  that  cases  must  be  decided  upon  the  evidence  introduced,  and  not 
with  reference  to  any  individual  knowledge  that  any  juror  may  have, 
and  I  give  now  the  general  instruction  that,  nothing  appearing  to 
the  contrary,  the  ocean  is  a  highway." 

Exception  is  taken  to  these  instructions.  But  they  are  so  clearly 
in  consonance  with  well-established  principles,  and  the  decisions  of 
this  court,  that  it  is  unnecessary  to  discuss  them.  Kingsley  v.  La)id 
lm,proveinent  Co.,  supra;  Rolfe  v.  Rumford,  66  Maine,  564. 

We  perceive  no  reason  for  disturbing  the  verdict,  upon  the  motion. 

Motion  and  exceptions  overruled.^ 

1  "  The  instruction  on  this  subject  was,  '  that  the  deed  under  which  the 
plaintiff  claimed  conveyed  whatever  was  necessary  to  the  beneficial  enjoy- 
ment of  the  estate  granted,  and  in  the  power  of  the  grantor  to  convey;  that 
it  was  not  enough  for  the  plaintiff  to  prove  that  the  way  claimed  would  be 
convenient  and  beneficial,  but  she  must  also  prove  that  no  other  way 
could  be  conveniently  made  from  the  highway  to  her  intestate's  house,  with- 
out unreasonable  labor  and  expense ;  that  unreasonable  labor  and  expense 
means   excessive   and   disproportionate   to   the   value   of   the   property   pur- 


478  RICHARDS    V.    ROSE  [CHAP.   VIII 

KICHARDS  V.  ROSE 
9  Ex.  218.    1853. 

The  first  count  of  the  declaration  stated,  that  the  plaintiff  was 
the  owner  of  a  certain  messuage  and  dwelling-house,  and  Avas  entitled 
to  have  the  same  supported  by  certain  land  and  premises  of  the  de- 
fendant adjoining  thereto;  yet  that  the  defendant  wrongfully  and 
unlaAvfully  dug,  excavated,  and  made  a  drain-hole  and  tunnel,  and 
removed  and  took  away  part  of  the  said  land  of  the  defendant,  and 
thereby  deprived  the  said  messuage  and  dwelling-house  of  the  plain- 
tiff of  the  said  support  to  which  she  was  lawfully  entitled,  whereby 
the  walls,  and  parts  of  the  said  house  cracked,  gave  way,  and  were 
damaged. 

The  second  count  charged  the  defendant  with  having  negligently, 
&e.,  dug  the  drain,  whereby  the  walls  of  the  said  dwelling-house  were 
undermined,  cracked,  and  damaged. 

The  defendant  pleaded,  first,  Not  guilty  to  the  whole  declaration; 
and  secondly,  to  the  first  count,  that  the  plaintiff  Avas  not  entitled  to 
haA^e  her  said  messuage  or  dAvelling-house  supported  by  the  said  land 
and  premises  of  the  defendant  adjoining  thereto.  Upon  Avhich  pleas 
issues  were  joined. 

At  the  trial,  before  PoJIock,  C.  B.,  at  the  Middlesex  Sittings  after 
last  term,  it  appeared  that  the  plaintiff's  and  defendant's  houses  ad- 


chased;  and  that  it  was  a  question  for  the  jury,  on  all  the  evidence,  Avhether 
such  new  way  could  be  made  without  such  unreasonable  labor  and  expense.' 

"  The  court  are  of  opinion  that  this  instruction  was  correct.  The  word 
'  necessaiy '  cannot  reasonably  be  held  to  be  limited  to  absolute  physical 
necessity.  If  it  were  so,  the  way  in  question  would  not  pass  with  the  land, 
if  another  way  could  be  made  by  any  amount  of  labor  and  expense,  or  by 
any  possibility.  If,  for  example,  the  property  conveyed  were  worth  but  one 
thousand  dollars,  it  would  follow  from  this  construction  that  the  plaintiff's 
intestate  Avould  not  haA-e  the  right  of  way  over  the  triangular  piece  as 
appurtenant  to  the  land,  provided  he  could  have  made  another  way  at  an 
expense  of  one  hundred  thousand  dollars.  If  the  word  '  necessary '  is  to 
have  a  more  liberal  and  reasonable  interpretation  than  this,  the  one  adopted 
by  the  judge  must  be  regarded  as  correct.  Its  effect  was,  to  require  proof 
that  the  way  over  this  triangular  piece  was  reasonably  necessar>'  to  the 
enjoyment  of  the  dwelling-house  granted.  See  Ewart  v.  Cochrane,  7  Jur. 
N.  S.  925;  Leonard  v.  Leonard,  2  Allen,  543;  Carhrey  v.  Willis,  7  Allen,  364. 

"As  the  facts  were  properly  submitted  to  the  jury,  and  evidence  was  ad- 
missible as  to  the  consideration  paid  for  the  land  and  the  cost  of  making 
a  way,  it  was  proper  that  the  jurA^  should  compare  the  facts  together  and 
make  such  inferences  as  they  should  think  reasonable.  The  instruction  on 
this  point  was  correct."  —  Pet tingill  v.  Porter,  8  All.  (Mass.)  1.  6,  7.  And 
see  Greenwood  v  West,  171  Ala.  463;  Brookshire  v.  Harp,  186  Ky.  217,  222; 
Watson  V.  French,  112  Me.  371;  Nichols  v.  Luce,  24  Pick.  (Mass.)  102; 
Cornell-Andrews  Co.  v.  Boston  &  P.  R.  Co.,  202  Mass.  585;  Hart  v.  Deering, 
222  Mass.  407;  Palmer  v.  Palmer,  150  N.  Y.  139;  Crotty  v.  New  River 
Coal  Co.,  72  W.  Va.  68;   Miller  v.  Skaggs,  79  W.  Va.  645. 


SECT.    l]  RICHARDS    V.    ROSE  479 

joined  each  other,  being  nunihers  five  and  six  in  the  same  street;  and 
that  the  action  was  brought  to  recover  compensation  for  damage  done 
to  the  plaintiff's  house  by  the  disturbance  of  its  foundations.  The 
houses  had  been  originally  the  property  of  the  same  person;  and  in 
August,  1847,  he  demised  them  both  to  one  Watmough,  by  separate 
instruments,  for  ninety-nine  years.  Watmough  mortgaged  them  to 
one  Brown,  and  he  assigned  his  interest  in  the  mortgage  to  one 
Halliday,  who,  under  a  power  contained  in  the  deed  of  mortgage, 
sold  one  of  the  houses  to  the  plaintiff  in  July,  1849,  and  the  other 
house  to  the  defendant  in  the  following  month  of  September.  At 
the  time  the  houses  were  built,  there  was  no  public  sewer,  but  the 
ground  landlord,  under  the  supervision  of  the  Commissioners  of 
Sewers,  made  a  sewer  through  the  public  street  for  the  convenience 
of  the  tenants;  and  the  defendant,  by  the  consent  of  the  Commis- 
sioners, formed  a  drain  in  connection  Avith  the  public  sewer  through 
his  own  house.  In  making  this  drain,  the  damage  was  occasioned 
for  which  the  present  action  was  brought. 

On  the  part  of  the  defendant,  it  was  objected  that,  under  this  state 
of  circumstances,  the  action  could  not  be  maintained,  inasmuch  as 
the  plaintiff  had  not  established  her  right  to  the  support  she  claimed. 
The  Lord  Chief  Baron  left  the  case  to  the  jury,  Avho  found  a  verdict 
for  the  plaintiff  with  £25  damages,  leave  being  reserved  to  the  de- 
fendant to  move  to  set  that  verdict  aside,  and  to  enter  a  verdict  for 
him. 

Lush  moved  accordingly. 

The  court  then  intimated  that  the  learned  counsel  might  take  a 
rule  nisi  upon  the  latter  point,  on  payment  of  costs;  but  this  he  de- 
clined to  do.  Cur.  adv.  vuJt. 

Pollock,  C.  B.  now  said  —  In  this  case  Mr.  Lush  moved  for  a 
rule  nisi  to  set  aside  the  verdict  found  for  the  plaintiff'  with  £25 
damages,  and  to  enter  a  verdict  for  the  defendant.  We  are  all  of 
opinion  that  there  ought  to  be  no  rule.  It  seems  to  be  clear  that, 
where  a  number  of  houses  are  built  upon  a  plot  of  ground,  all  the 
houses  belonging  to  the  same  person,  being  all  built  together,  and 
each  obviously  requiring  the  mutual  support  of  its  neighbors  for 
their  common  protection  and  security,  such  right  of  mutual  support 
equally  exists,  whether  the  owner  parts  first  with  one  house,  and  th(>n 
with  another,  or  with  two  together,  the  ownership  of  the  latter  be- 
ing afterwards  divided,  either  by  sale,  mortgage,  devise,  or  by  any 
other  means.  The  right  does  not  depend  upon  the  determination  of 
the  fact  whether  the  houses  are  parted  with  at  one  or  at  separate 
times.  That  fact  cannot  aftVct  the  result  where  the  houses  are 
originally  built,  depending  upon  each  other,  and  requiring  their 
mutual  support.  It  seems  to  be  purely  a  matter  of  common  sense, 
that  the  possessors  are  not  to  be  deprived  of  that  mutual  support, 
and  that  a  person  in  possession  of  one  of  the  houses  shall  not  be  ])er- 
mitted  to  say  to  his  neighbors,  "  You  are  not  entitled  to  the  protec- 


480  PYER    V.    CARTER  [CHAP.   VIII 

tion  of  my  house :  I  will  pull  it  down  to  the  ground,  and  will  let 
the  houses  upon  each  side  of  it  collapse  and  fall  into  the  ruins."  The 
case  of  Pinnington  v.  (talland,  9  Ex.  1,  which  is  a  recent  decision  of 
this  court,  seems  to  involve  the  same  principle.  That,  however,  was 
in  respect  of  a  right  of  way,  and  not  of  a  right  of  support.  But  we 
are  all  of  opinion  that,  where  houses  have  been  erected  in  common 
by  the  same  owner  upon  a  plot  of  ground,  and  therefore  necessarily 
requiring  mutual  support,  there  is,  either  by  a  presumed  grant  or  by 
a  presumed  reservation,  a  right  to  such  mutual  support;  so  that  the 
owner  who  sells  one  of  the  houses,  as  against  himself  grants  such 
right,  and  on  his  own  part  also  reserves  the  right;  and  consequently 
the  same  mutual  dependence  of  one  house  upon  its  neighbors  still 
remains.  Upon  the  point  reserved,  therefore,  there  will  be  no  rule. 
The  learned  counsel  seems  also  to  have  objected,  that  the  finding  of 
the  jury  must  have  been  based  upon  something  in  the  nature  of  a 
compromise,  inasmuch  as  the  damages,  if  any,  should  have  been 
much  greater  in  amount,  and  consequently  that  the  verdict  requires 
revision.  It  appears,  however,  to  us  that  although  there  are  cases 
in  which  such  an  argument  might  prevail,  the  present  case  does  not 
fall  within  such  principle.  In  the  case  of  an  action  on  a  bill  of 
exchange,  to  which  the  defendant  pleads  only  that  the  bill  is  forged, 
and  the  jury  find  a  verdict  for  the  plaintiff,  with  damages  one 
farthing,  thereby  compromising  the  matter  by  finding  that  the  bill 
is  not  forged,  and  yet  giving  the  plaintiff  nominal  damages  only, 
the  court  would  clearly  see  that  the  verdict  is  inconsistent,  and  that 
the  jury  had  failed  to  discharge  their  duty.  That  principle  does 
not  apply  where  the  damages  are  large.  And,  moreover,  in  this 
case  there  was  evidence  to  show  that  the  foundation  of  the  plaintiff's 
house  was  not  very  secure,  and  consequently  there  was  some  color 
for  the  view  which  the  jury  took  of  the  amount  of  damage  occa- 
sioned by  the  defendant's  act.  The  court  are  of  opinion  that  the 
defendant  is  not  entitled  to  a  rule  for  a  new  trial  upon  this  point, 
except  upon  payment  of  costs;  and  the  learned  counsel  has  declined 
to  accept  the  rule  upon  that  condition.  Rule  refused.^ 


PYEE  V.  CxiRTER 
1  H.  &  N.  916.    1857. 

The  declaration  stated,  that  before  and  at  the  time  oi  committing 
the  grievances,  &c.,  the  plaintiff  was  lawfully  possessed  of  a  mes- 
suage and  premises  with  the  appurtenances,  situate  in  St.  Anne 
Street,  Liverpool,  and  by  reason  thereof  was  entitled  to  a  drain  or 

1  See  Goldschmid  v.  Starring,  5  Mackey  (D.  C.)  582;  Morrison  v.  King, 
62  111.  30;  Teachout  v.  Duff  us,  141  Iowa  466;  Adams  v.  Marshall,  138  Mass. 
228;  Curtiss  v.  Ayrault,  47  N.  Y.  73;  Rogers  v.  Sinsheimer,  50  N.  Y.  646. 


SECT.    l]  PYER    V.    CARTER  481 

sewer,  and  passage  for  water,  leading  from  the  said  messuage  and 
premises,  in,  through,  and  under  certain  adjoining  land  at  Liverpool 
aforesaid,  through  which  the  rain  and  water  from  the  plaintiff's 
said  messuage  and  premises  of  right  had  flowed,  and  still  of  right 
ought  to  flow,  away  from  the  plaintiff's  said  messuage  and  premises : 
yet  the  defendant  wrongfully  stopped  up  the  said  drain  and  sewer, 
whereby  divers  large  quantities  of  rain  and  water  which  of  right 
ought  to  have  flowed,  and  otherwise  would  have  flowed,  through  the 
same  drain,  sewer  and  passage  for  water,  were  prevented  from  flow- 
ing from  the  plaintiff's  said  messuage  and  premises,  and  flooded, 
soaked  into  and  injured  the  same,  &c. 

Pleas.  —  First :  Not  guilty.  Secondly :  that  the  plaintiff  Avas  not 
entitled  to  the  said  drain,  sewer,  and  passage  for  water;  nor  did  the 
rain  and  water  from  the  plaintiff's  said  messuage  and  premises  of 
right  flow,  nor  ought  to  flow,  away  from  the  plaintiff's  said  messuage 
and  premises  through  the  said  drain,  sewer  and  passage  for  water 
as  alleged.  —  Issues  thereon. 

At  the  trial,  before  BramwelJ,  B.,  at  the  last  Lancashire  Summer 
Assizes,  it  appeared  that  the  plaintiff  and  defendant  were  owners 
of  adjoining  houses  situate  in  St.  Anne  Street,  Liverpool.  These 
houses  had  been  formerly  one  house,  and  had  belonged  to  a  person 
of  the  name  of  Williams,  who  converted  them  into  two  houses.  In 
July,  1853,  Williams  conveyed  the  defendant's  house  to  him  in  fee. 
This  conveyance  contained  no  reservation  of  any  easement.  In 
September,  1853,  Williams  conveyed  the  plaintiff's  house  to  him 
in  fee.  At  the  time  of  these  conveyances  a  drain  or  sewer  ran 
under  the  plaintiff's  house  and  thence  under  the  defendant's  house 
and  discharged  itself  into  the  common  sewer  in  St.  Anne  Street. 
Water  from  the  eaves  of  the  defendant's  house  fell  on  the  plaintiff's 
house,  and  from  thence  flowed  down  a  spout  into  the  drain  on  the 
plaintiff's  premises,  and  so  into  the  common  sewer.  The  defendant 
blocked  up  the  drain  where  it  entered  his  house,  and  in  consequence, 
whenever  it  rained,  the  plaintiff's  house  was  flooded.  The  defend- 
ant stated  that  he  was  not  aware  of  the  drain  at  the  time  of  the 
conveyance  to  him.  It  was  proved  that  the  plaintiff  might  con- 
struct a  drain  directly  from  his  own  house  into  the  common  sewer 
at  a  cost  of  about  six  pounds. 

It  was  submitted  on  the  part  of  the  defendant,  that  the  plaintiff 
had  no  right  to  the  use  of  the  drain  under  the  defendant's  house. 
The  learned  judge  directed  a  verdict  for  the  plaintiff,  reserving  leave 
to  the  defendant  to  move  to  enter  a  verdict  for  him. 

Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Watson,  B.  This  was  an  action  for  stopping  a  drain  that  ran 
under  both  the  plaintiff's  and  defendant's  houses,  taking  the  water 
from  both.     The  cause  was  tried  at  Liverpool,  before  Baron  Bram- 


482  PYER    V.    CARTER  [CHAP.    VIII 

ivell,  when  a  verdict  was  entered  for  the  plaintiff,  and  a  motion  was 
made  to  enter  a  verdict  for  defendant  in  pursuance  of  leave  reserved 
at  the  trial. 

The  plaintiff's  and  defendant's  houses  adjoined  each  other.  They 
had  formerly  been  one  house,  and  were  converted  into  two  houses 
by  the  owner  of  the  whole  property.  Subsequently  the  defendant's 
house  was  conveyed  to  him,  and  after  that  conveyance  the  plaintiff 
took  a  conveyance  of  his  house..  At  the  time  of  the  respective  con- 
veyances the  drain  ran  under  the  plaintiff's  house  and  then  under 
the  defendant's  house,  and  discharged  itself  into  the  common  sewer. 
Water  from  the  eaves  of  the  defendant's  house  fell  on  the  plaintiff's 
house,  and  then  ran  into  the  drain  on  plaintiff's  premises,  and  thence 
through  the  drain  into  the  common  sewer.  The  plaintiff's  house 
was  drained  through  this  drain.  It  was  proved  that,  by  the  ex- 
penditure of  six  pounds,  the  plaintiff  might  stop  the  drain  and  drain 
directly  from  his  own  land  into  the  common  server.  It  was  not 
proved  that  the  defendant,  at  the  time  of  his  purchase,  knew  of 
the  position  of  the  drains. 

Under  these  circumstances  we  are  of  opinion,  upon  reason  and 
upon  authority,  that  the  plaintiff  is  entitled  to  our  judgment.  We 
think  that  the  owners  of  the  plaintiff's  house  are,  by  implied  grant, 
entitled  to  have  the  use  of  this  drain  for  the  purpose  of  conveying 
the  w^ater  from  his  house,  as  it  ^vas  used  at  the  time  of  the  defend- 
ant's purchase.  It  seems  in  accordance  with  reason,  that  where 
the  owner  of  two  or  more  adjoining  houses  sells  and  conveys  one 
of  the  houses  to  a  purchaser,  that  such  house  in  his  hands  should 
be  entitled  to  the  benefit  of  all  the  drains  from  his  house,  and  sub- 
ject to  all  the  drains  then  necessarily  used  for  the  enjoyment  of 
the  adjoining  house,  and  that  without  express  reservation  or  grant, 
inasmuch  as  he  purchases  the  house  such  as  it  is.  If  that  w^ere  not 
so,  the  inconveniences  and  nuisances  in  towms  would  be  very  great. 
Where  the  owner  of  several  adjoining  houses  conveyed  them  sepa- 
rately, it  w^ould  enable  the  A'endee  of  any  one  house  to  stop  up  the 
system  of  drainage  made  for  the  benefit  and  necessary  occupation 
of  the  whole.  The  authorities  are  strong  on  this  subject.  In 
Nicholas  v.  Chamberlain,  Cro.  Jac.  121,  it  was  held  by  all  the  court 
that,  "  if  one  erects  a  house  and  builds  a  conduit  thereto  in  another 
part  of  his  land,  and  conveys  water  by  pipes  to  his  house,  and  after- 
wards sells  the  house  with  the  appurtenances,  excepting  the  land, 
or  sells  the  land  to  another,  reserving  to  himself  the  house,  the 
conduit  and  pipes  pass  with  the  house,  hecause  it  is  necessary  and 
quasi  appendant  thereto,  and  he  shall  have  liberty  by  law  to  dig  in 
the  land  for  amending  the  pipes  or  making  .them  new^  as  the  case 
requires.  So  if  a  lessee  for  years  of  a  house  and  land  erect  a  conduit 
upon  the  land,  and  after  the  term  the  lessor  occupies  them  together 
for  a  time,  and  afterwards  sells  the  house  with  the  appurtenances, 
to  one,  and  the  land  to  another,  the  vendee  shall  have  the  conduit 


SECT.    l]  SUFFIELD    V.   BROWN  483 

and  the  pipes,  and  liberty  to  amend  tlieni."  Shury  v.  Pigoft,  Pop- 
ham,  166;  s.  c.  3  Bulst.  339;  and  the  ease  of  Coppy  v.  /.  de  B., 
]1  Hen.  7,  25,  pi.  6.  support  this  view  of  the  case,  that  where  a 
gutter  exists  at  the  time  of  the  unity  of  seisin  of  adjoining  houses 
it  remains  when  they  are  aliened  by  separate  conveyances,  as  an 
easement  of  necessity. 

It  was  contended,  on  the  part  of  the  defendant,  that  this  pipe 
was  not  of  necessity,  as  the  plaintiff  might  have  obtained  another 
outlet  for  the  drainage  of  his  house  at  the  expense  of  six  pounds. 
We  think  that  the  amount  to  be  expended  in  the  alteration  of  the 
drainage,  or  in  the  constructing  a  new  system  of  drainage,  is  not 
to  be  taken  into  consideration,  for  the  meaning  of  the  word 
"necessity"  in  the  cases  above  cited,  and  in  Pinninglon  v.  GaJland, 
9  Exch.  1,  is  to  be  understood  the  necessity  at  the  time  of  the  con- 
veyance, and  as  matters  then  stood  without  alteration;  and  whether 
or  not  at  the  time  of  the  conveyance  there  was  any  other  outlet  for 
the  drainage  water,  and  matters  as  they  then  stood,  must  be  looked  at 
for  the  necessity  of  the  drainage. 

It  was  urged  that  there  could  be  no  implied  agreement  unless 
the  easement  was  apparent  and  continuous.  The  defendant  stated 
he  was  not  aware  of  this  drain  at  the  time  of  the  conveyance  to  him ; 
but  it  is  clear  that  he  must  have  known  or  ought  to  have  known 
that  some  drainage  then  existed,  and  if  he  had  inquired  he  Avould 
have  known  of  this  drain ;  therefore  it  cannot  be  said  that  such  a 
drain  could  not  have  been  supposed  to  have  existed;  and  we  agree 
with  the  observation  of  Mr.  Gale  (Gale  on  Easements,  p.  53,  2d  ed.) 
that  by  "  apparent  signs  "  must  be  understood  not  only  those  which 
must  necessarily  be  seen,  but  those  Avhich  may  be  seen  or  known 
on  a  careful  inspection  by  a  person  ordinarily  conversant  with  the 
subject.  We  think  that  it  was  the  defendant's  own  fault  tliat  he 
did  not  ascertain  what  easements  the  owner  of  the  adjoining  house 
exercised  at  the  time  of  his  purchase;  and  therefore  we  think  the 
rule  must  be  discharged.  Rule  discharged. 


SUFFIELD  r.  BKOWN 
4  DeG.  J.  &.  S.  185.    1863. 

This  was  an  appeal  by  the  (IcfcMuhuit  from  a  decree  of  the  blaster 
of  the  Rolls,  whereby  his  Honor  granted  without  costs  a  perpetual 
injunction  restraining'  the  appellant  from  preventing  or  interfering 
with  the  full  use  and  enjoyment  of  the  dock,  hereinafter  referred  to, 
by  the  ])laintiffs  in  the  manner  the  same  had  theretofore  been  used, 
by  allowing  the  bowsprit  of  any  vessel  in  the  plaintiff's  dock  to 
overlie  or  overhang  a  certain  specified  portion,  to  be  marked  out 


484  SUFFIELD    V.    BROWN  [CHAP.   VIII 

by  metes  and  bounds,  of  the  appellant's  wharf,  also  hereinafter 
referred   to,  with  liberty  to   apply. 

The  plaintiffs  were  respectively  the  owners  in  fee  and  lessees 
of  a  dock  situate  on  the  Thames  at  Bermondsey,  and  used  for  re- 
pairing  ships,   principally   sailing   vessels. 

The  appellant  was  the  owner  in  fee  of  a  strip  of  land  and  coal 
wharf  adjoining  the  dock,  on  which  he  had  begun  to  build  a  ware- 
house. 

The  plaintiffs  filed  the  bill  in  this  suit  for  an  injunction  to  re- 
strain such  building,  on  the  ground  that  w^hen  their  dock  was  occupied 
by  a  vessel  of  large  size,  her  bowsprit  must  project  over  the  boundary 
fence  of  the  dock,  across  the  appellant's  premises,  which  it  could  not 
do  if  the  appellant's  building  should  be  erected,  and  that  they  had 
a  right  to  restrain  such  building,  because  it  would  deprive  them 
of  an  easement  or  privilege  which  they  were  entitled  to  use  or 
exercise  over  the  land  of  the  appellant. 

The  plaintiffs  put  their  case  upon  possession  and  enjoyment  of 
the  privilege  claimed  by  them  of  sufficient  duration  to  create  a  legal 
title.  The  Master  of  the  Rolls  decided,  and  in  the  judgment  of  the 
Lord  Chancellor  (from  whose  judgment  the  present  statement  of 
the  facts  is  in  the  main  taken)  correctly,  that  the  plaintiffs  had  not 
proved  a  possession  or  enjoyment  sufficient  to  create  a  legal  title 
to  an  easement ;  but  his  Honor  nevertheless  granted  an  injunction 
in  the  terms  above  stated. 

Shortly  stated,  the  facts  of  the  case  were  as  follows :  — 

From  the  year  1841  until  the  month  of  June,  1845,  a  person 
named  Knox  was  the  owner  in  fee,  and  also  the  occupier,  both  of 
the  dock  and  of  the  adjoining  strip  of  land  and  coal  wharf;  and  the 
evidence  proved  that  during  such  period  whenever  a  ship  of  any  size 
was  taken  into  the  dock  to  be  repaired,  her  standing  bowsprit 
projected  over  and  across  the  adjoining  strip  of  land. 

In  the  month  of  June,  1845,  the  two  properties,  the  dock  and  the 
strip  of  land  and  coal  wharf,  were  put  up  for  sale  by  Knox  by  public 
auction. 

In  the  description  given  in  the  particulars  of  sale,  it  was  stated 
that  the  dock  was  capable  of  holding  two  vessels  of  large  size,  and 
that  at  low  water  several  vessels,  or  a  steamer  of  the  largest  class, 
could  safely  lie  on  "  the  ways  "  for  repairs. 

The  strip  of  land  described  and  sold  as  a  "  freehold  coal  wharf  " 
was  stated  to  be  capable  of  being  rendered  worth  a  very  large  rental 
by  a  comparatively  small  outlay.  It  was  represented,  therefore, 
as  an  improvable  property,  and  nothing  was  stated  to  show  that 
the  dock  or  its  owners  either  then  had,  or  were  intended  to  have, 
any  right  or  privilege  over  the   adjoining  premises. 

At  the  auction,  the  strip  of  land  and  coal  wharf  were  sold  to 
one  Gibson,  and  by  the  conveyance,  which  was  dated  in  July,  1845, 
the  vendor  (who,  at  the  execution  of  the  deeds,  still  remained  owner 


SECT.   l]  SUFFIELD   V.   BROWN  485 

of  the  dock),  conveyed  the  strip  of  laud  and  coal  wharf  to  the  pur- 
chaser, under  whom  the  appellant  claimed,  in  the  most  unqualified 
manner  in  fee  simple,  "  together  with  all  privileges,  easements  and 
appurtenances  to  the  premises  belonging,  and  all  the  estate,  right, 
title,  interest,  property,  claim  and  demand  whatsoever,  both  at  law 
and  in  equity,  of  the  vendor,  in,  to,  or  out  of  the  same  hereditaments 
and  premises,  and  every  part  thereof."  The  dock  was  afterwards 
sold  and  conveyed  to  other  persons,  under  whom  the  plaintiffs 
claimed. 

At  the  conclusion  of  the  arguments,  the  Lord  Chancellor  reserved 
his  judgment. 

The  Lord  Chancellor  [Lord  Westbury],  after  stating  the  nature 
and  the  facts  of  the  case  to  the  effect  of  the  statement  hereinbefore 
contained,   proceeded   as  follows  :  — 

The  conveyance  of  the  coal  wharf,  therefore,  is  tlie  grant  of  a 
person  who  was  at  that  time  absolute  owner  of  the  dock,  in  respect 
of  the  ownership  of  which  the  present  right  is  now  claimed  by  his 
grantees  against  the  coal  wharf,  and  it  is  very  difficult  to  under- 
stand how  any  interest,  right  or  claim  in,  over  or  upon  any  part 
of  the  coal  wharf  could  remain  in  the  grantor,  or  be  granted  bv 
him  to  a  third  person,  consistently  with  the  prior,  absolute  and  un- 
qualified grant  that  was  so  made  of  the  coal  wharf  premises  to  the 
purchaser. 

Assuming  that  the  vendor  had  been  in  the  habit,  during  his  joint 
occupation  of  both  properties,  of  making  the  coal  wharf  subservient 
in  any  way  to  the  purposes  of  the  dock,  one  would  suppose  that 
the  right  to  do  so  was  cut  off  and  released  by  the  necessary  operation 
of  an  unqualified  sale  and  conveyance  of  the  subservient  property. 

It  seems  to  me  more  reasonable  and  just  to  hold  that  if  the  grantor 
intends  to  reserve  any  right  over  the  property  granted,  it  is  his 
duty  to  reserve  it  expressly  in  the  grant,  rather  than  to  limit  and 
cut  down  the  operation  of  a  plain  grant  (which  is  not  pretended 
to  be  otherwise  than  in  conformity  with  the  contract  between  the 
parties),  by  the  fiction  of  an  implied  reservation.  If  this  plain 
rule  be  adhered  to,  men  will  know  what  they  have  to  trust,  and 
will  place  confidence  in  the  language  of  their  contracts  and  assurances. 

But  this  view  of  the  case  is  not  that  taken  by  his  Honor  the 
Master  of  the  Rolls. 

In  the  note  which  has  been  furnished  me  of  his  Honor's  judg- 
ment, his  Honor  is  represented  as  saying:  —  "The  ground  on  which 
I  think  he  (the  defendant)  cannot  contest  this  right  in  the  plaintiff 
is  because  I  think  that  such  projection  of  the  bowsprit  from  the 
vessel  in  the  dock  is  essential  to  the  full  and  complete  enjoyment 
of  the  dock  as  it  stood  at  the  time  when  he,  or  rather  Gibson  under 
whom  he  claims,  ])urchased  the  wharf,  and  that  Gibson  and  he  had 
distinct  notice  of  this  fact,  not  merely  from  the  description  contained 
in  the  particulars  of  sale  under  which  he  bought,  but  also  because 


486  SUFFIELD    V.   BROWN  [CHAP.   VIII 

the  fact  was  patent  and  obvious  to  any  one,  on  the  ground  that 
if  the  dock  admitted  the  largest  vessel  capable  of  being  contained 
in  it,  the  bowsprit  must  project  over  that  portion  of  the  wharf 
which  I  have  pointed  out."  And  again,  "  If,  therefore,  it  be  true 
that  the  dock  can  still  be  used,  it  is  equally  true  that  it  cannot 
be  used  exactly  as  it  has  been  heretofore,  and  my  opinion  is  that 
this  projection  of  the  bowsprit  is  necessary  for  the  due  enjoyment 
of  the  dock  in  the  ordinary  sense  of  that  term." 

The  eifect  of  this  is,  that  if  I  purchase  from  the  owner  of  two 
adjoining  freehold  tenements  the  fee  simple  of  one  of  those  tene- 
ments and  have  it  conveyed  to  me  in  the  most  ample  and  unqualified 
form,  I  am  bound  to  take  notice  of  the  manner  in  which  the  adjoin- 
ing tenement  is  used  or  enjoyed  by  my  vendor,  and  to  permit  all 
such  constant  or  occasional  invasions  of  the  property  conveyed  as 
may  be  requisite  for  the  enjoyment  of  the  remaining  tenement  in 
as  full  and  ample  a  manner  as  it  was  used  and  enjoyed  by  the  vendor 
at  the  time  of  such  sale  and  conveyance.  This  is  a  very  serious 
and  alarming  doctrine ;  I  believe  it  to  be  of  very  recent  introduction ; 
and  it  is  in  my  judgment  unsupported  by  any  reason  or  principle, 
when  applied  to  grants  for  valuable  consideration. 

That  the  purchaser  had  notice  of  the  manner  in  which  the  tene- 
ment sold  to  him  was  used  by  his  vendor  for  the  convenience  of 
the  adjoining  tenement  is  wholly  immaterial,  if  he  buys  the  fee 
simple  of  his  tenement,  and  has  it  conveyed  to  him  -without  any 
reservation.  To  limit  the  vendor's  contract  and  deed  of  conveyance 
by  the  vendor's  previous  mode  of  using  the  property  sold  and  con- 
veyed is  inconsistent  with  the  first  principles  of  law,  as  to  the  effect 
of  sales  and  conveyances. 

Suppose  the  owner  of  a  manufactory  to  be  also  the  owner  of  a 
strip  of  land  adjoining  it  on  which  he  has  been  for  years  in  the 
habit  of  throAving  out  the  cinders,  dust  and  refuse  of  his  workshops 
which  would  be  an  easement  necessary  (in  the  sense  in  which  that 
word  is  used  by  the  Master  of  the  Eolls)  for  the  full  enjoyment 
of  the  manufactory;  and  suppose  that  I,  being  desirous  of  extend- 
ing my  garden,  purchase  this  piece  of  land  and  have  it  conveyed 
to  me  in  fee  simple;  and  the  owner  of  the  manufactory  afterwards 
sells  the  manufactory  to  another  person;  am  I  to  hold  my  piece 
of  land  subject  to  the  right  of  the  grantee  of  the  manufactory 
to  throw  out  rubbish  on  it?  According  to  the  doctrine  of  the 
judgment  before  me,  I  certainly  am  so  subject;  for  the  case  falls 
strictly  within  the  rules  laid  down  by  his  Honor,  and  it  reduces 
them  to  an  absurd  conclusion. 

The  first  introduction  of  this  extraordinary  doctrine  appears  to 
have  been  made  in  the  following  manner :  — 

A  learned  and  ingenious  author,  the  late  Mr.  Gale,  published, 
in  the  year  1839,  a  work  of  great  merit  on  this  subject  of  easements, 
in  which  he  derived  from  the  doctrine  of  the  French  Code  Civil  ^ 

1  See  French  Civil  Code,  Arts.  688-694;  65  U.  P.  L.  Rev.  77. 


SECT.    l]  SUFFIELD    V.    BROWN  487 

certain  rules  with  which  he  conceived  that  the  law  of  England 
agreed,  and  inasmuch  as  these  conclusions  have  been  cited  with 
approbation  in  some  recent  cases  at  common  law,  and  as  they  form 
the  principal  support  of  the  plaintiff's  argument,  it  is  right  to  state 
and  examine  them. 

Mr.  Gale,  in  the  opening  of  his  4th  chapter  (page  81,  ed.  3), 
says :  "  The  implication  of  the  grant  of  an  easement  may  arise  in 
two  ways:  1st,  upon  the  severance  of  an  heritage  by  its  owner  into 
two  or  more  parts;  and  2dly,  by  prescription.  Upon  the  severance 
of  an  heritage  a  grant  will  be  implied,  1st,  of  all  those  continuous 
and  apparent  easements  which  have  in  fact  been  used  by  the  owner 
during  the  unity,  and  which  are  necessary  for  the  use  of  the  tenement 
conveyed,  though  they  have  had  no  legal  existence  as  easements;  and, 
2dly,  of  all  those  easements  without  which  the  enjoyment  of  the 
severed  portions  could  not  be  had  at  all." 

It  will  be  observed  that  the  learned  author  is  not  here  speaking 
of  easements  which  are  already  legally  existing  before  the  unity 
of  possession,  but  of  those  which  he  supposes  to  arise  for  the  first 
time  by  implication  from  the  grant. 

If  nothing  more  be  intended  by  this  passage  than  to  state,  that 
on  the  grant  by  the  owner  of  an  entire  heritage  of  part  of  that 
heritage,  as  it  is  then  used  and  enjoyed,  there  will  pass  to  the 
grantee  all  those  continuous  and  apparent  easements  which  have 
been  and  are  at  the  time  of  the  grant  used  by  the  owner  of  the  en- 
tirety for  the  benefit  of  the  parcel  granted,  there  can  be  little  doubt 
of  its  correctness;  but  it  seems  clear  that  the  learned  writer  uses 
the  word  "  grant "  in  the  sense  of  reservation  or  mutual  grant, 
and  intends  to  state,  that  where  the  ownier  of  the  entirety  sells  and 
grants  a  part  of  it  in  the  fullest  manner,  there  will  still  be  reserved 
to  such  owner  all  such  continuous  and  apparent  or  necessary  ease- 
ments out  of  or  upon  the  thing  granted  as  have  been  used  by  the 
owner  for  the  benefit  of  the  unsold  part  of  the  heritage  during 
the  unity  of  possession.  This  is  clearly  shown  by  what  is  subse- 
quently laid  down,  that  it  is  immaterial  which  of  the  two  tenements 
is  first  granted,  whether  it  be  the  quasi  dominant  or  quasi  servient 
tenement. 

But  I  cannot  agree  that  the  grantor  can  derogate  from  his  own 
absolute  grant  so  as  to  claim  rights  over  the  thing  granted,  even 
if  they  were  at  the  time  of  the  grant  continuous  and  apparent 
easements  enjoyed  by  an  adjoining  tenement  which  remains  the 
property  of  him  the  grantor. 

Consider  the  easements  as  if  they  were  rights,  members  or  aj^purte- 
nances  of  the  adjoining  tenenu'iit;  they  still  admit  of  being  aliened 
or  released,  and  the  absolute  sale  and  grant  of  the  land  on  or  over 
which  they  are  claimed  is  inconsistent  Avith  the  continuance  of  any- 
thing abridging  the  complete  enjoyment  of  the  thing  granted  which 
is  separable  from  the  tenement  retained,  and  can  be  aliened  or 
released  by  the  owner. 


488  SUFFIELD    V.    BROWN  [CHAP.   VIII 

Many  rules  of  law  are  derived  from  fictions,  and  llie  rules  of  the 
French  Code,  which  Mr.  Gale  has  copied,  are  derived  from  the 
fiction  of  the  owner  of  the  entire  heritage,  which  is  afterwards 
severed,  standing  in  the  relation  of  pere  de  famille,  and  impressing 
upon  the  different  portions  of  his  estate  mutual  services  and  obliga- 
tions which  accompany  such  portions  when  divided  among  them, 
or  even,  as  it  is  used  in  French  law,  when  aliened  to  strangers. 

But  this  comparison  of  the  disposition  of  the  owner  of  two  tene- 
ments to  the  destination  du  pere  de  famille  is  a  mere  fanciful  analogy, 
from  which  rules  of  law  ought  not  to  be  derived.  And  the  analogy, 
if  it  be  worth  grave  attention,  fails  in  the  case  to  be  decided,  for 
when  the  owner  of  two  tenements  sells  and  conveys  one  for  an 
absolute  estate  therein,  he  puts  an  end,  by  contract,  to  the  relation 
which  he  had  himself  created  between  the  tenement  sold  and  the 
adjoining  tenement;  and  discharges  the  tenement  so  sold  from  any 
burden  imposed  upon  it  during  his  joint  occupation;  and  the  con- 
dition of  such  tenement  is  thenceforth  determined  by  the  contract 
of  alienation  and  not  by  the  previous  user  of  the  vendor  during 
such  joint  ownership. 

And  this  observation  leads  me  to  notice  the  fallacy  in  the  judgment 
of  the  Court  of  Exchequer  in  the  case  of  Pyer  v.  Carter,  1  H.  &  IST. 
916,  one  of  the  two  cases  on  which  the  Master  of  the  Rolls  relies. 

In  Pyer  v.  Carter  the  owner  of  two  houses  sold  and  conveyed  one 
of  them  to  a  purchaser  absolutely,  and  without  reservation,  and  he 
subsequently  sold  and  conveyed  the  remaining  house  to  another 
person.  It  appeared  that  the  second  house  was  drained  by  a  drain 
that  ran  under  the  foundation  of  the  house  first  sold;  and  it  was 
held  that  the  second  purchaser  was  entitled  to  the  ownership  of 
the  drain,  that  is,  to  a  right  over  the  freehold  of  the  first  purchaser, 
because,  said  the  learned  judges,  the  first  purchaser  takes  the  house 
"  such  as  it  is."  But  with  great  respect,  the  expression  is  erroneous, 
and  shows  the  mistaken  view  of  the  matter;  for  in  a  question,  as 
this  was,  between  the  purchaser  and  the  subsequent  grantee  of  his 
vendor,  the  purchaser  takes  the  house  not  "  such  as  it  is,"  but 
such  as  it  is  described  and  sold  and  conveyed  to  him  in  and  by  his 
deed  of  conveyance;  and  the  terms  of  the  conveyance  in  Pyer  v. 
Carter  were  quite  inconsistent  with  the  notion  of  any  right  or  in- 
terest remaining  in  the  vendor.  It  was  said  by  the  court  that  the 
easement  was  "  apparent,"  because  the  purchaser  might  have  found 
it  out  by  inquiry ;  but  the  previous  question  is  whether  he  was  under 
any  obligation  to  make  inquiry,  or  would  be  affected  by  the  result 
of  it;  which,  having  regard  to  his  contract  and  conveyance,  he 
certainly  was  not.  Under  the  circumstances  of  the  case  of  Pyer  v. 
Carter  the  true  conclusion  was,  that  as  between  the  purchaser  and 
the  vendor  the  former  had  a  right  to  stop  and  block  up  the  drain 
where  it  entered  his  premises,  and  that  he  had  the  same  right  against 
the  vendor's  grantee.  I  cannot  look  upon  the  case  as  rightly  de- 
cided, and  must  wholly  refuse  to  accept  it  as  any  authority. 


SECT.    l]  SUFFIELD   V.    BROWN  489 

But  to  the  earlier  cases  cited  by  the  court  in  Pyer  v.  Carter  as 
authorities  for  its  decision  there  can  be  no  objection. 

In  Nicholas  v.  Chamberlain,  Cro.  Jac.  121,  it  was  decided  that 
if  the  owner  of  a  house,  being  also  owner  of  the  land  surrounding 
it,  make  a  conduit  through  part  of  the  land  to  the  house,  and  then 
sells  the  house  with  its  appurtenances,  the  right  to  the  conduit 
passes;  that  is  to  say,  the  court  held  that  the  conduit  was  a  thing 
appertaining  to  the  house,  and  as  such  passed  under  the  conveyance; 
and  in  the  same  case  it  was  also  decided,  that  if  the  owner  sell  the 
land,  reserving  the  house,  the  right  to  the  conduit  is  reserved,  — 
a  decision  which  merely  amounts  to  this,  that  the  reservation,  like 
the  grant  of  a  house,  is  the  reservation  or  grant  of  it  with  its 
appurtenances. 

To  this  case  and  to  the  case  in  the  Year  Book  of  the  11th  of 
Henry  VII.,  25  PI.  6,  Coppy  v.  /.  de  B.,  or  the  case  of  Sury  v. 
Pigott,  Palmer,  444,  there  can  be  no  objection ;  but  they  do  not 
give  any  support  to  the  decision  in  Pyer  v.  Carter. 

The  other  case  relied  on  by  his  Honor,  namely,  Hinchcliffe  v. 
The  Earl  of  Kinnoul,  5  Bing.  N".  C.  1,  is  of  a  different  character, 
and  does  not  apply  to  the  question  of  easements  reserved  by  implica- 
tion or  the  grant  of  the  quasi  servient  tenement.  In  that  case,  there 
being  two  adjoining  houses,  belonging  to  the  same  lessor,  it  appeared 
that  the  coal  cellar  under  one  house  was  supplied  through  a  shoot, 
the  mouth  of  which  opened  in  the  yard  of  the  adjoining  house; 
and  it  was  held  that  a  demise  by  the  owner  of  both  houses,  of  the 
first  .house  with  its  appurtenances,  carried  with  it  the  right  to  use 
the  coal  shoot,  and  also  a  right  of  way  to  the  coal  shoot  through 
the  premises  of  the  adjoining  house,  such  way  being  necessary  for 
the  enjoyment  of  the  coal  shoot,  —  a  decision  which  rests  upon 
the  ordinary  principle  of  law,  that  if  I  grant  a  tenement  for  valuable 
consideration  I  also  grant  a  right  of  way  to  it  through  my  land, 
if  such  way  be  absolutely  necessary  for  the  enjoyment  of  the  thing 
granted. 

This  case  might  have  had  some  application  to  the  present  if  the 
dock  had  been  the  property  first  sold,  and  had  been  conveyed  Avith 
all  privileges,  easements,  rights,  and  appurtenances  as  then  used  and 
enjoyed  by  the  vendor,  he  being  still  the  owner  of  the  adjoining 
strip  of  land  and  coal  wharf;  but  it  is  plain  that  no  easements  can 
arise  by  the  necessary  operation  of  a  grant,  unless  it  be  in  the  power 
of  the  grantor  to  give  such  easements. 

It  is  true  that  there  may  be  two  tenements,  as,  for  example,  two 
adjoining  houses,  so  constructed  as  to  be  mutually  subservient  to 
and  dependent  on  each  other,  neither  being  ('ai)able  of  standing  or 
being  enjoyed  without  the  support  it  derives  from  its  neighbor; 
in  which  case  the  alienation  of  one  house  by  the  owner  of  both 
would  not  estop  him  from  claiming,  in  respect  of  the  house  he  retains, 
that  support  from  the  house  sold,  which  is  at  the  same  time  afforded 


490  SUFFIELD    V.    BROWN  [CHAP.   VIII 

in  return  by  the  former  to  the  latter  tenement  (which  was  the  case 
of  Richards  v.  Bose,  9  Exch.  218) ;  but  where  the  right  claimed  in 
respect  of  the  tenement  retained  by  the  joint  owner  against  the 
tenement  granted  by  him  is  separable  from  the  former  tenement, 
it  is  severed,  and  either  passed  or  extinguished  by  the  grant. 

It  must  always  be  recollected  that  I  have  been  speaking  through- 
out of  cases  where  (as  in  the  present  case)  the  easement  claimed 
had  no  legal  existence  anterit)r  to  the  unity  of  possession,  but  is 
claimed  as  arising  by  implied  grant  or  reservation  upon  the  dis- 
position of  one  of  two  adjoining  tenements  by  the  owner  of  both,  — 
which  is  in  my  opinion  an  ingenious  but  fanciful  theory,  which  is, 
as  to  part,  not  required  by,  and  is  as  to  the  other  part  wholly  in- 
consistent with,  the  plain  and  simple  principles  of  English  law  that 
regulate   the  effect   and  operation   of   grants   of   real   property. 

There  is  in  my  judgment  no  possible  legal  ground  for  holding 
that  the  owner  of  the  dock  retained  or  had  in  respect  of  that  tenement 
any  right  or  easement  over  the  adjoining  tenement  of  the  strip  of 
land  and  coal  wharf  after  the  sale  and  alienation  of  the  latter  in 
the  year  1845.  I  must  entirely  dissent  from  the  doctrine  on  which 
his  Honor's  decree  is  founded,  that  the  purchaser  and  grantee  of 
the  coal  wharf  must  have  known,  at  the  time  of  his  purchase,  that 
the  use  of  the  dock  would  require  that  the  bowsprits  of  large  vessels 
received  in  it  should  project  over  the  land  he  bought,  and  that  he 
must  be  considered,  therefore,  to  have  bought  with  notice  of  this 
necessary  use  of  the  dock,  and  that  the  absolute  sale  and  conveyance 
to  him  must  be  cut  down  and  reduced  accordingly.  I  feel  bound, 
with  great  respect,  to  say  that  in  my  judgment  such  is  not  the  law. 

But  if  any  part  of  this  theory  were  consistent  with  law,  it  would 
not  support  the  decree  appealed  from,  for  the  easement  claimed 
by  the  plaintiff  is  not  "  continuous,"  for  that  means  something 
the  use  of  which  is  constant  and  uninterrupted ;  neither  is  it  "  an 
apparent  easement,"  for  except  when  a  ship  is  actually  in  the  dock 
with  her  bowsprit  projecting  beyond  its  limits,  there  is  no  sign  of 
its  existence;  neither  is  it  a  "necessary  easement,"  for  that  means 
something  without  w^hich  (in  the  language  of  the  treatise  cited) 
the  enjoyment  of  the  dock  could  not  be  had  at  all. 

But  this  is  irrelevant  to  my  decision,  which  is  founded  on  the 
plain  and  simple  rule  that  the  grantor,  or  any  person  claiming  under 
him,  shall  not  derogate  from  the  absolute  sale  and  grant  which  he 
has  made. 

Therefore  I  must  reverse  the  decree  of  the  Master  of  the  Eolls, 
and  dissolve  the  injunction  he  has  granted,  and  dismiss  the  plaintiff's 
bill,  with  costs. 


5ECT.    l]       UNION    LIGHTERAGE    V.    LON.   GRAVING   DOCK  491 


UNION  LIGHTERAGE  CO.  v.   LONDON  GRAVING 
DOCK  CO. 

[1902]  2  Ch.  557.     1902. 

Appeal  from  the  decision  of  Cozeiis-IIardy,  J.,  [1901]  2  Ch.  300. 

In  1860  Henry  Green  was  the  owner  in  fee  simple  of  some  river- 
side property  at  Blackwell.  The  western  part  was  used  as  a  wharf 
and  shipbnihling  yard,  and  was  in  the  occupation  of  Messrs.  Free- 
man as  tenants.  The  eastern  part  was  in  the  occupation  of  Green 
himself.  In  the  same  year  he  employed  contractors  to  construct 
a  graving  dock  on  his  own  premises.  It  was  constructed  with 
timber  sides,  the  underground  sui)ports  or  ties  being  placed  on  the 
eastern  side  of  tlie  boundary  fence  dividing  the  two  portions  of  the 
property.  Signs  of  weakness  soon  appeared,  and,  in  order  to  make 
the  dock  secure.  Green,  in  or  about  1861,  under  some  arrangement 
with  his  tenants,  Messrs.  Freeman,  carried  rods  or  ties  through 
the  boundary  fence  under  the  wharf  to  a  distance  of  about  15  ft.  6  in., 
piles  being  placed  there,  and  the  rods  or  ties  being  fastened  to  the 
piles  by  nuts.  The  rods  or  ties  were  not  visible  under  the  wharf, 
nor,  except  to  the  extent  which  will  he  mentioned  presently,  Avere 
the  piles  or  the  nuts  visible. 

In  1877,  Green  having  died,  and  both  the  properties  being  in 
hand,  the  devisees  under  his  will  conveyed  the  wharf  premises  to 
the  plaintiffs,  who  carried  on  business  there  up  to  the  commence- 
ment of  the  present  action.  The  conveyance  was  in  the  ordinary 
form,  ai'd  contained  no  express  reservation  of  any  right  of  support 
to  the  dock.  In  1886  Green's  devisees  sold  the  dock  premises  to  a 
company,  which  subsequently  sold  those  premises  to  the  defendants, 
who  carried  on  business  there  up  to  the  commencement  of  the  action. 
This  conveyance  also  was  in  common  form,  and  was  silent  as  to 
support.  In  1892  the  defendants  concreted  the  bottom  and  a  small 
part  of  the  side  of  their  dock;  but  with  this  exception  the  timber 
remained  as  before.  In  1900  the  plaintiffs,  in  the  course  of  excava- 
tions with  a  view  to  improving  their  property,  came  across  a  number 
of  rods  and  ties,  which  were  those  which  had  been  placed  there 
in  1861. 

The  question  in  the  action  was  whether  the  defendants  were 
entitled,  as  against  the  plaintiffs,  to  have  their  dock  supported  by 
means  of  the  rods  and  ties. 

The  result  of  the  evidence  was  thus  stated  by  Cozens-Hardy,  J., 
in  his  judgment :  — 

"  Evidence  has  been  adduced  which  satisfies  me  on  several  points. 
(1.)  For  a  timber  dock  of  this  nature  it  was  reasonably  necessary 
to  have  underground  rods  and  ties  extending  beyond  the  division 
fence  between  the  two  properties.     This  was  proved  by  actual  ex- 


492      UNION    LIGHTERAGE    1).   LON.   GRAVING  DOCK      [CHAP.   VIlI 

perieuce  in  1860,  and  Mr.  Jt^ft'eroy,  whose  testimony  was  in  no  way 
shaken,  states  that  the  proper  distance  for  safety,  though  it  might 
vary  slightly  having  regard  to  the  nature  of  the  soil,  is  for  a  dock 
of  this  depth  thirty-three  feet  from  the  side,  and  this  is  about  the 
distance  adopted  in  1861.  (2.)  If  instead  of  a  timber  dock  a  con- 
crete wall  had  been  placed  on  the  western  side  of  the  dock,  it  would 
not  have  been  necessary  to  go  beyond  the  boundary  fence.  (3.)  The 
plaintiffs,  when  they  purchased  in  1877,  in  fact  had  no  knowledge 
of  the  existence  of  the  rods  or  ties  under  their  land,  and  they  were 
not  aware  of  their  existence  until  1900.  In  saying  this  I  refer  to 
the  directors  and  managers  of  the  plaintiff  company.  (4.)  There 
are  now  visible  on  the  western  side  of  the  camp-sheathing,  (See 
note  [1901]  2  Ch.  at  p.  302),  which  holds  up  the  side  of  the  wharf, 
and  a  few  inches  above  the  slip,  two  nuts  on  the  outside  of  piles. 
These  are  nuts  and  piles  placed  there  in  1861.  These  nuts  are 
not  always  visible,  and  are  not  of  such  a  nature  as  to  attract  atten- 
tion. In  fact,  the  directors  and  the  present  manager  had  not  noticed 
them  until  1900.  (5.)  Although  a  skilled  expert  informed  of  the 
nature  of  the  dock  might  have  concluded  that  these  nuts  had  to  do 
with  the  support  of  the  dock,  no  ordinary  person  conversant  with 
riverside  property  would  necessarily  have  arrived  at  this  conclusion, 
for  they  might  very  probably  have  served  to  support  the  camp- 
sheathing  and  the  wharf  behind  it.  (6.)  If  the  plaintiffs  remove 
the  ties  it  is  probable  that  the  dock  side  will  give  way." 

The  accuracy  of  this  statement  was  not  disputed. 

Cozens-Hardy,  J.  held  that  when  the  wharf  was  conveyed  to  the 
plaintiff's  there  was  no  implied  reservation  of  a  right  to  support 
to  the  dock ;  that  the  support  had  been  enjoyed  clam,  and  th'at  there- 
fore no  easement  had  been  acquired  by  enjoyment ;  and  that  the  plain- 
tiffs were  entitled  to  remove  the  rods  and  ties,  although  the  result 
might  be  to  cause  the  defendant's  dock  to  collapse. 

The  defendants  appealed. 

Vaughan  Williams,  L.  J.  read  the  following  judgment:^ 

The  question  is,  w^hether  there  has  been  gained,  in  respect  of  the 
dry  dock  of  the  defendants,  the  right  to  retain  in  or  under  the  land 
of  the  plaintiffs  certain  rods  or  ties  for  the  purpose  of  supporting 
or  upholding  the  dry  dock.  The  defendants  claim  the  right  in  two 
ways:  first,  by  way  of  implied  reservation;  secondly,  by  way  of 
prescriptive  easement.  It  is  necessary,  in  order  to  judge  of  these 
claims,  to  state  the  history  of  the  case.  [His  Lordship  stated  the 
facts,  and  continued  :  —  ] 

I  will  now  deal  with  the  two  legal  questions  in  succession.  First, 
was  there,  under  these  circumstances,  any  reservation  by  Green  of 
the  right  of  support  by  these  tie-rods?     Secondly,  have  Green  or  his 

1  Those  portions  of  the  opinion  which  deal  with  the  question  of  prescrip- 
tion are  omitted. 


SECT.    l]       UNION    LIGHTERAGE    V.    LON.   GRAVING   DOCK  493 

succesyors,  by  enjoyment  since  1877,  acquired,  by  prescription  or 
presumed  lost  grant,  any  right  to  this  support?  Xow,  as  to  the 
question  of  reservation,  Wheeldon  v.  Burrows,  12  Ch.  D.  31,  puts 
beyond  doubt  the  general  rule,  that,  if  a  grantor  upon  a  conveyance 
of  part  of  his  property  intends  to  reserve  any  right  over  the  tene- 
ment granted,  he  must  do  so  by  an  express  reservation  in  the  grant. 
So  far  Wheeldon  v.  Burrows,  12  Ch.  D.  31,  is  a  mere  affirmation 
of  the  law  as  laid  down  by  Lord  Westbury  in  Suffield  v.  Brown, 
4  D.  J.  &  S.  185,  194,  where  he  says :  "  But  I  cannot  agree  that  the 
grantor  can  derogate  from  his  own  absolute  grant  so  as  to  claim 
rights  over  the  thing  granted,  even  if  they  were  at  the  time  of  the 
grant  continuous  and  apparent  easements  enjoyed  by  an  adjoining 
tenement  which  remains  the  property  of  him  the  grantor.  Consider 
the  easements  as  if  they  were  rights,  members,  or  appurtenances  of 
the  adjoining  tenement;  they  still  admit  of  being  aliened  or  released, 
and  the  absolute  sale  and  grant  of  the  land  on  or  over  which  they 
are  claimed  is  inconsistent  with  the  contiiuiance  of  anything  abridg- 
ing the  complete  enjoyment  of  the  thing  granted  which  is  separable 
from  the  tenement  retained,  and  can  be  aliened  or  released  by  the 
owner."  But  both  Thesiger,  L.  J.,  in  Wheeldon  v.  Burrows,  12  Ch. 
D.  31,  and  Lord  Westbury  in  Suffield  v.  Brown,  4  D.  J.  &  S.  185, 
194,  recognize  that  there  are  some  exceptions  to  this  general  rule. 
One  exception  is  the  case  of  necessity'',  of  Avhich  a  way  of  necessity  is 
the  most  familiar  instance.  Another  case  of  exception  is  the  case 
of  reciprocity,  in  which  houses  or  other  buildings  are  so  constructed 
as  to  be  mutually  subservient  to  and  dependent  on  each  other,  neither 
being  ca])able  of  standing  or  being  enjoyed  without  the  support  it 
derives  from  its  neighbor.  This  exception  is  recognized  by  Lord 
Westbury,  4  D.  J.  «&  S.  198,  and  by  Thesiger,  L.  J.,  in  Wheeldon  v. 
Burrows,  12  Ch.  D.  31,  the  judgment  of  Pollock,  C.  B.,  in  Bichards 
V.  Rose,  9  Ex.  218,  being  generally  the  authority  quoted  for  this 
exception  of  reciprocal  or  mutual  easements.  A  third  exception  is 
where  that  which  is  claimed  to  be  reserved  is  not  an  incorporeal 
easement,  but  part  and  parcel  of  a  house  or  other  building  belonging 
to  the  conveying  party,  but  not  included  in  the  conveyance.  This 
exception  is  clearly  recognized  by  James,  L.  J.,  in  a  short  supple- 
mentary judgment  which  he  delivered  in  Wheeldon  v.  Burrows, 
12  Ch.  D.  31.  He  said :  "  I  only  want  to  say  something  in  addition, 
that  in  the  case  of  Nicholas  v.  Chmnherlain,  Cro.  Jac.  121,  the 
Court  seems  to  have  really  proceeded  on  the  ground  that  it  was  not 
an  incorporeal  easement,  but  that  the  Avhole  of  the  conduit  through 
which  the  water  ran  was  a  corporeal  part  of  the  house,  just  as  in 
any  old  city  there  are  cellars  projecting  under  other  houses.  They 
thought  it  was  not  merely  the  right  to  the  passage  of  water,  but 
that  the  conduit  itself  passed  as  part  of  the  house,  just  like  a  flue 
passing  through  another  man's  house."  Thesiger,  L.  J.,  also  recog- 
nizes the  same  exception,  but  put  Nicholas  v.  Chamberlain,  Cro.  Jac. 


494       UNION    LIGHTERAGE    V.    LON.    GRAVING    DOCK      [CHAP.   VIII 

121,  as  ail  instance  of  an  easement  of  necessity.  Lord  Westbury 
seems  also  to  recognize  this  exception,  for,  speaking  of  Nicholas  v. 
Chamberlain,  Cro.  Jac.  121,  he  said,  (4  D.  J.  &  S.  197)  :  it  is  "a 
decision  which  merely  amounts  to  this,  that  the  reservation,  like 
the  grant  of  a  house,  is  the  reservation  or  grant  of  it  Avith  its 
appurtenances."  The  present  case  is  on  the  border  line,  but  there 
is  a  great  deal  to  be  said  in  favor  of  the  contention  of  the  defendants, 
that  these  tie-rods  fastened  to""  the  piles  constitute  a  corporeal  part 
of  the  dry  dock,  which  was  reserved,  and,  being  essential  to  the 
maintenance  of  the  dry  dock,  as  it  stood  before  and  at  the  time  of 
the  conveyance,  fall  within  Thesiger,  L.  J.'s  view  of  this,  which  I 
have  called  the  third  exception,  by  being  easements  of  necessity. 
On  the  whole,  I  think  that  the  defendants  are  entitled  to  keep  these 
tie-rods  in  the  position  in  which  they  were  originally  placed,  and 
always  have  been  maintained,  for  the  necessary  purpose  of  the 
maintenance  of  the  dry  dock  as  built  with  its  wooden  sides.  The 
tie-rods,  in  my  opinion,  are  a  corporeal  part  of  the  dry  dock,  just 
like  the  conduit  or  the  cellar,  or  the  flue  mentioned  by  James,  L.  J. 
The  tie-rods  were,  I  think,  reserved  with  the  dry  dock  as  appurte- 
nances thereof,  as  Lord  Westbury  expresses  it. 

I  have  only  to  add  that  I  do  not  assert  that  the  authorities 
uniformly  recognize  the  exceptions  which  1  have  specified  to  the 
general  rule  laid  down  by  Lord  Westbury  in  Suffield  v.  Brown, 
4  D.  J.  &  S.  185,  194,  namely,  the  rule  that  it  seems  more  reasonable 
and  just  to  hold  that,  if  the  grantor  intends  to  reserve  any  right 
over  property  granted,  it  is  his  duty  to  reserve  it  expressly  in  the 
grant,  rather  than  to  limit  and  cut  down  the  operation  of  a  plain 
grant  (which  is  not  pretended  to  be  otherwise  than  in  conformity 
with  the  contract  between  the  parties)  by  a  fiction  of  an  implied 
reservation.  For  instance,  there  is  this  statement  made  by  Lord 
Chelmsford,  L.  C,  in  Cross! ey  &  Sons  v.  Lightowhr,  L.  R.  2  Ch. 
478,  486 :  "  It  appears  to  me  to  be  an  immaterial  circumstance  that 
the  easement  should  be  apparent  and  continuous,  for  non  constat 
that  the  grantor  does  not  intend  to  relinquish  it  unless  he  shows 
the  contrary  by  expressly  reserving  it."  But  against  this  dictum 
one  has  to  put  all  those  cases  in  which  a  reservation  is  implied  for 
a  right  of  support  by  way  of  reservation  in  favor  of  the  grantor. 
These  cases  will  be  found  set  out  in  the  judgment  of  Wood,  V.-C, 
in  the  note  to  Taylor  v.  Shaffo,  [1867]  8  B.  8z  S.  228,  252,  which 
show  generally  that  the  implication  in  favor  of  an  existing  support 
is  easily  made  on  the  ground  of  necessity.  It  cannot,  as  it  seems 
to  me,  be  said  that  the  result  of  the  judgments  in  either  Wheeldon  v. 
Burrows,  12  Ch.  D.  31,  or  Suifield  y'.  Brown,  4  D.  J.  &  S.  185,  is  that 
it  is  impossible  to  presume  a  reservation  from  the  state  of  things 
existing  at  the  moment  of  severance  of  ownership  of  adjoining  houses 
originally  belonging  to  one  owner.  Richards  v.  Rose,  9  Ex.  218, 
was  the  case  of  two  houses  originally  built  together  and  belonging 


SECT.    l]       UNION    LIGHTERAGE    V.    LON.   GRAVING   DOCK  495 

to  the  same  owner,  and  there  the  Court  presumed  that,  upon  sever- 
ance of  ownership,  there  was  a  grant  and  reservation  of  a  reciprocal 
right  of  support.  It  is,  of  course,  true  that  the  reciprocity  is  an 
important  consideration  in  the  infei-ence,  but  the  inference  is  not 
from  user;  it  is  based  upon  the  fact  of  the  state  of  things  existing 
at  the  moment  of  severance.  It  may  be  that  the  presumption  will 
more  readily  arise  where  there  is  reciprocity  than  where  there  is  no 
reciprocity,  but  the  principle  is  the  same  in  either  case.  In  each 
case  there  is  an  exception  from  the  rule  that  a  man  shall  not  dero- 
gate from  his  own  express  grant.  The  grantor  is  allowed  by  impli- 
cation to  derogate  from  his  own  express  grant.  Why?  Because  of 
the  state  of  things  at  the  moment  of  severance. 

RoMER,  L.  J.  read  the  following  judgment :  In  my  opinion  this 
appeal  fails.  In  the  first  place,  I  think  that  when  the  vendors, 
through  whom  the  defendants  claim,  conveyed  the  plaintiffs'  land 
to  the  plaintiffs,  no  reservation  can  be  implied  in  favor  of  the  vendors 
of  a  right  of  support  in  respect  of  the  defendants'  dock.  When  the 
conveyance  is  looked  at,  it  appears  to  me  that  the  ties  supporting 
the  dock,  so  far  as  they  are  on  the  plaintiffs'  land,  cannot  be  treated 
as  part  of  the  dock,  and  as  not  being  conveyed.  The  land  conveyed 
is  clearly  described,  and,  in  my  opinion,  must  cover  the  place  occu- 
pied by  the  ties.  Nor  is  this  one  of  those  cases  of  difficulty,  referred 
to  in  WheeJdon  v.  Burrows,  12  Ch.  D.  31,  and  other  authorities, 
where  at  the  date  of  conveyance  reciprocal  rights  as  between  the 
property  conveyed  on  the  one  hand  and  the  property  retained  by  the 
vendors  on  the  other  might  be  inferred.  That  being  so,  then,  follow- 
ing Wheeldon  v.  Burrows,  12  Ch.  D.  31,  by  which  we  are  hound,  it 
is  clear  that  a  reservation  of  a  right  of  support  in  the  present  case 
could  only  be  implied  if  it  were  one  of  necessity.  Now,  all  I  need 
say  on  this  part  of  the  case  is  that  the  facts  do  not  lead  me  to  the 
conclusion  that  there  was  any  such  necessity  proved,  or  to  be  inferred, 
as  would  require,  or  would  justify  the  Court  in  holding,  that  the 
reservation  should  be  implied. 

Stirling,  L.  J.  read  his  judgment  as  follows :  The  first  point  de- 
cided by  Cozens-Hardy,  J.,  was  that,  on  the  conveyance  to  the  plain- 
tiffs of  the  wharf  in  1877,  there  was  no  implied  reservation  to  the 
vendor  of  the  easement  now  claimed  by  the  def(Midnnts. 

On  this  point  the  governing  authority  is  Wheeldon.  v.  Burrows, 
]2  Ch.  1).  31,  decided  by  James,  Baggallay,  and  Thesiger,  L.  JJ., 
by  the  last  of  whom  the  judgment  of  the  Court  was  delivered.  In 
it  two  rules  are  laid  down  in  the  following  terms  (12  Ch.  D.  49)  : 
"  The  first  of  these  rules  is,  that  on  the  grant  by  the  owner  of  a 
tenement  of  part  of  that  tenement  as  it  is  then  used  and  enjoyed, 
there  will  pass  to  the  grantee  all  those  continuous  and  a])parent 
easements  (hy  which,  of  course,  I  mean  quasi-easemei\tii) ,  or,  in  other 
words,  all  those  easements  which  are  necessary  to  the  reasoiuible 
enjoyment  of  the  property  granted,  and  which  have  been  and  are 


496       UNION    LIGHTERAGE    V.    LON.   GRAVING   DOCK      [CHAP.   VIII 

at  the  time  of  the  grant  used  by  the  owners  of  the  entirety  for  the 
benefit  of  the  part  granted.  The  second  ...  is,  that,  if  the  grantor 
intends  to  reserve  any  right  over  the  tenement  granted,  it  is  his 
duty  to  reserve  it  expressly  in  the  grant.  Those  are  the  general 
rules  governing  cases  of  this  kind,  but  the  second  of  those  rules  is 
subject  to  certain  exceptions.  One  of  those  exceptions  is  the  well- 
known  exception  which  attaches  to  cases  of  what  are  called  ways 
of  necessity."  After  reviewing  various  cases,  the  learned  judge 
said  (12  Ch.  D.  58)  :  "  These  cases  in  no  way  support  the  proposi- 
tion for  which  the  appellant  in  this  case  contends;  but,  on  the 
contrary,  support  the  propositions  that  in  the  case  of  a  grant  you 
may  imply  a  grant  of  such  continuous  and  apparent  easements  or 
such  easements  as  are  necessary  to  the  reasonable  enjoyment  of  the 
property  conveyed,  and  have  in  fact  been  enjoyed  during  the  unity 
of  ownership,  but  that,  with  the  exception  which  I  have  referred  to 
of  easements  of  necessity,  you  cannot  imply  a  similar  reservation 
in  favor  of  the  grantor  of  land." 

The  appellants  did  not  dispute  that  there  is  no  express  reservation 
in  the  conveyance  to  the  plaintiffs,  but  they  contended  that  the  ease- 
ment claimed  by  the  defendants  is  an  "  easement  of  necessity  "  within 
the  recognized  exception  to  the  second  rule.  Now,  in  the  passages 
cited  the  expressions  "  ways  of  necessity  "  and  "  easements  of  neces- 
sity "  are  used  in  contrast  with  the  other  expressions,  "  easements 
which  are  necessary  to  the  reasonable  enjoyment  of  the  property 
granted  "  and  "  easements  .  .  .  necessary  to  the  reasonable  enjoy- 
ment of  the  property  conveyed,"  and  the  word  "  necessity  "  in  the 
former  expressions  has  plainly  a  narrower  meaning  than  the  word 
"  necessary  "  in  the  latter. 

In  my  opinion  an  easement  of  necessity,  such  as  is  referred  to, 
means  an  easement  without  which  the  property  retained  cannot  be 
used  at  all,  and  not  one  merely  necessary  to  the  reasonable  enjoy- 
ment of  that  property.  In  Wheeldon  v.  Burrows,  12  Ch.  D.  31, 
the  lights  which  were  the  subject  of  decision  were  certainly  reasonably 
necessary  to  the  enjoyment  of  the  property  retained,  which  was  a 
workshop,  yet  there  was  held  to  be  no  reservation  of  it.  So  here  it 
may  be  that  the  tie-rods  which  pass  through  the  plaintiffs'  property 
are  reasonably  necessary  to  the  enjoyment  of  the  defendants'  dock 
in  its  present  condition ;  but  the  dock  is  capable  of  use  without  them, 
and  I  think  that  there  cannot  be  implied  any  reservation  in  respect 
of  them.  Some  other  exceptions  to  the  general  rule  are  mentioned 
in  Wheeldon  v.  Burrows,  12  Ch.  D.  31,  and  in  particular  reciprocal 
easements,  but  it  was  not  contended,  and  it  does  not  appear  to  me 
that  this  case  falls  within  any  of  them.  Nor  do  I  think  that  the 
tie-rods  here  form  part  of  the  corporeal  structure  of  the  dock  which 
can  be  held  not  to  have  passed  by  the  conveyance  of  the  adjoining 
property.^ 

1  See  Wheeldon  v.  Burrows,  L.  R.  12  Ch.  D.  31. 


SECT.    l]  CARBREY    V.    WILLIS  497 


CARBREY  V.  WILLIS 

7  All.  (Mass.)  364.     1863. 

CoNTKACT  to  recover  damages  for  the  breach  of  the  covenants 
of  warranty  and  against  encumbrances  in  a  deed  of  land  on  Atkinson 
Street,  in  Boston,  bounded  in  part  as  follows :  "  Southerly  on  land 
now  or  late  of  Benjamin  Gould,  there  measuring  sixteen  feet  and 
six  inches;  westerly  again  on  the  same,  there  measuring  sixteen 
feet;  and  southerly  on  land  now  or  late  of  the  heirs  of  Cowell,  there 
measuring  forty-eight  feet,  more  or  less,  to  said  Atkinson  Street, 
or  however  otherwise  bounded  or  described."  The  declaration 
alleged  that  the  premises  conveyed  Avere  subject  to  a  right  of  drainage 
across  the  same,  and  also  to  the  right  to  have  the  eaves  on  the  estate 
on  the  southerly  side  thereof  overhang  said  land,  and  the  water 
drip  therefrom. 

At  the  trial  in  the  Superior  Court,  before  Ames.  J.,  the  execution 
of  the  deed  by  the  defendant,  which  was  dated  May  1,  1848,  was  ad- 
mitted.    It  appeared  in  evidence  that  in  1812,  and  for  many  years 
before  that  time,  the  granted  premises,  and  also  an  estate  on  High 
Street,  in  favor  of  which  the  alleged  right  of  drainage  was  claimed, 
belonged  to  George  Blanchard;  and  that  in  1812  Blanchard  conveyed 
to  Rebecca  Richardson  the  estate  described  in  said  deed,  by  a  deed 
of  mortgage  in  the  common  form,  with  general  covenants  of  war- 
ranty  and   freedom   from  encumbrance,   to   secure   the  payment   of 
$5000  in  two  years  with  interest.     The  title  under  this  mortgage  and 
also  the  equity  of  redemption,  which  was  taken  on  execution,  became 
vested  in  the  defendant  as  early  as  1821.     The  title  to  the  estate  on 
High  Street  passed  from  Blanchard  in  1815,   and  is  now  held  by 
devisees  of  William  Phillips,  who  acquired  the  title  thereto  in  1823. 
The  plaintiff  introduced  evidence  tending  to  show  that  there  was 
no  trouble  with  the  drain  from  the  estate  on  High  Street  until  1857, 
when  it  became  choked  up,  and  flooded  the  cellar  of  .the  house  from 
which  it  led,  and  a  mason  was  employed  to  make  examinations,  and 
it  was  found  that  it  passed  through  the  plaintiff's  land;  and  that  the 
house  upon  the  estate  on  High  Street  was  an  old  house  prior  to  the 
year  1812.     The  plaintiff  testified  that  he  had  no  knowledge  of  the 
existence  of  the  drain  until  it  was  opened  by  the  mason.     There  was 
no  evidence  when  or  under  what  circumstances  the  drain  was  origi- 
nally constructed,  except  that  the  mason  testified  that  it  a])peared  as 
if  it  was  built  when  the  house  drained  by  it  was  built.     There  was 
some  conflict  of  testimony  as  to  the  practicability  of  draining  from 
the  cellar  of  the  High  Street  estate  into  the  High  Street  sewer. 

"  The  judge  ruled  that,  there  being  no  evidence  as  to  the  precise 
tim(?  when  the  drain  was  constructed,  and  it  being  assumed  that  it 
was  an  ancient  one,  the  burden  was  upon  the  plaintiff  to  show  that 
the  owners  of  the  High  Street  estate  had  acquired  a  right  to  use  it, 


498  CARBREY    V.    WILLIS  [CHAP.    VIII 

and  that,  so  long  as  both  estates  were  owned  in  the  same  right  by  the 
same  person,  the  nse  of  the  drain  had  nothing  of  the  nature  or 
character  of  an  easement;  that,  after  the  ownership  was  severed  and 
the  two  estates  had  passed  into  different  hands,  the  fact  that  the  High 
Street  estate  continued  to  be  drained  across  the  plaintiff's  estate 
without  any  evidence  that  the  plaintiff  or  those  under  whom  he 
claims  had  any  knowledge  or  notice  whatsoever  of  the  fact,  would 
not  amount  to  such  an  adverse  use  or  such  a  claim  of  right  as  by 
mere  use  and  lapse  of  time  to  create  a  right  of  easement,  and  that 
such  use,  not  being  open  and  notorious,  would  not  establish  the  right, 
unless  shown  expressly  to  have  come  to  the  knowledge  of  the  owners 
of  the  plaintiff's  estate. 

"  The  judge  also  ruled  that,  although  a  drain  attached  to  and  used 
by  the  High  Street  estate  would  generally  be  held  to  be  appurtenant 
thereto  and  to  pass  by  any  deed  or  conveyance  thereof,  independently 
of  any  prescriptive  title  or  right  acquired  by  adverse  use,  yet  under 
the  circumstances  of  this  case,  the  drain  being  assumed  by  both 
parties  to  have  been  in  use  previously  to  the  year  1812,  and  the 
owner  at  that  time,  Blanchard,  having  conveyed  by  mortgage  the 
alleged  servient  estate  to  Richardson,  with  general  covenants  of 
warranty  and  freedom  from  encumbrances,  the  defendant,  under  the 
title  deeds  put  in  by  him,  making  his  title  in  part  under  the  con- 
veyance to  said  Richardson,  held  his  estate  in  1821  and  afterwards 
relieved  of  this  encumbrance ;  and  that  the  owners  of  the  High  Street 
estate,  claiming  under  said  Blanchard,  are  estopped  and  barred,  by 
the  previous  deed  from  said  Blanchard  of  the  other  estate^  from 
claiming  the  drain  in  controversy  as  appurtenant  to  their  estate." 

A  verdict  was  rendered  for  the  defendant,  by  the  direction  of  the 
judge,  and  the  facts  and  evidence  were  reported  for  the  revision  of 
this  court. 

Hoar,  J.  The  first  ruling  made  by  the  judge  who  presided  at  the 
trial  was  entirely  correct.  While  both  estates  were  owned  by  Blanch- 
ard, no  easement  could  be  created  by  any  use  of  the  drain  for  the 
benefit  of  one  of  them.  And  after  the  ownership  was  severed,  the 
continuance  of  the  drain  would  have  no  tendency  to  prove  the  ac- 
quisition of  an  easement  by  adverse  enjoyment,  because  the  use  was 
not  open  or  visible,  or  known  to  the  owners  of  the  estate  upon  which 
it  Avould  be  imposed. 

In  the  next  place,  it  is  clear  that  the  conveyance  by  the  mortgage 
to  Rebecca  Richardson  in  1812,  with  full  covenants  of  warranty, 
would  estop  the  grantor  and  those  claiming  under  a  title  subsequently 
derived  from  him,  from  claiming  any  interest  in  the  mortgaged  prem- 
ises. Wlien  the  mortgage  was  foreclosed  or  merged  in  the  equity 
of  redemption,  the  title  of  the  mortgagee  became  absolute  and  inde- 
feasible to  all  the  premises  included  in  the  mortgage  deed  at  the 
time  of  its  execution. 

The  only  question,  then,  which  arises  on  this  part  of  the  case  is, 


SECT.    l]  CARBREY    V.    WILLIS  490 

Avliether  anything  was  oxccptcd  from  the  grant  to  Kichardson,  as 
forming  a  part  of  the  High  Street  estate  which  was  retained  by  the 
grantor.  The  whole  doctrine  on  this  subject  was  reviewed  and  care- 
fully stated  in  the  case  of  Johnson  v.  Jordan,  2  Met.  234.  The  court 
in  that  case  intimate  the  opinion  "  that  if  a  man,  owning  two  tene- 
ments, has  built  a  house  on  one,  and  annexed  thereto  a  drain  pass- 
ing through  the  other,  if  he  sell  and  convey  the  house  with  the  ap- 
purtenances, such  a  drain  may  be  construed  to  be  de  facto  annexed 
as  an  appurtenance,  and  pass  with  it;  and  because  such  construction 
would  be  most  beneficial  to  the  grantee;  whereas,  if  he  were  to  sell 
and  convey  the  lower  tenement,  still  owning  the  u])per,  it  might 
reasonably  be  considered  that  as  the  right  of  drainage  Avas  not 
reserved  in  terms,  when  it  naturally  M'ould  be  if  so  intended,  it  could 
not  be  claimed  by  the  grantor.  The  grantee  of  the  lower  tenement, 
taking  the  language  of  the  deed  most  strongly  in  his  own  favor 
and  against  the  grantor,  might  reasonably  claim  to  hold  his  granted 
estate  free  of  the  encumbrance."  The  grants  were  in  that  case  simul- 
taneous. But  Avherc,  as  in  the  case  at  bar,  the  grant  of  the  lower 
estate  precedes  that  of  the  other,  Ave  think  the  true  rule  of  construc- 
tion is  this :  that  no  easement  can  be  taken  as  reserved  by  implica- 
tion, unless  it  is  de  facto  annexed  and  in  use  at  the  time  of  the  grant, 
and  is  necessary  to  the  enjoyment  of  the  estate  Avhich  the  grantor 
retains.  And  this  necessity  cannot  be  deemed  to  exist,  if  a  similar 
privilege  can  be  secured  by  reasonable  trouble  and  expense. 

The  rule  in  respect  to  easements  wtich  pass  by  implication  has 
been  held  with  some  strictness  in  this  Commonwealth,  even  in  the 
case  where  a  grantee  claims  them  as  against  his  grantor,  or  where 
the  question  arises  between  grantees  under  conveyances  made  at  the 
same  time,  or  in  cases  of  partition.  Thus  in  Grant  v.  Chase.  17  ^lass. 
443,  it  Avas  said  that  easements  Avhich  are  not  named  Avould  not  pass 
by  a  grant,  "  unless  they  Avere  either  parcel  of  the  premises  that  Avere 
expressly  conveyed,  or  necessarily  annexed  and  appendant  to  them." 
In  Nichols  v.  Luce,  24  Pick.  102,  it  was  held  that  "  convenience,  even 
great  conA'enience,  is  not  sufficient  "  to  make  a  right  of  Avay  pass  as 
appurtenant.  To  the  same  effect  is  Gajietty  v.  Bethnne,  14  Mass.  49; 
and  a  similar  conclusion  is  reached  upon  full  discussion,  by  Mr. 
Justice  Fletcher,  in  Thayer  \.  Payne,  2  Cush.  327. 

In  some  recent  cases  in  England  a  different  doctrine  seems  to  have 
prevailed;  and  CA^en  in  the  case  of  a  grant  of  a  part  of  an  estate,  an 
easement  has  been  held  to  be  reserved  to  the  grantor  as  parcel  of  the 
remainder,  Avithout  an  express  reservation,  if  it  Avere  de  facto  used  in 
connection  Avith  it  at  the  time  of  the  grant,  and  Avere  necessary  to 
its  enjoyment  in  the  condition  in  which  the  estate  then  AA-as.  Pi/er 
V.  Carter.  1  ITurlst.  &  Xorm.  016;  Ewart  v.  Cochrane.  7  Jur.  X'  g^ 
925;  Halt  v.  Lund.  Law  Journ.  Rep.  May,  lSfi3.  page  113.  In  Pi/er 
V.  Carter  it  Avas  held  that  it  Avould  make  no  difference  in  the  applica- 
tion of  the  principle,  if  a  ucav  drain  could  be  coustructed  on  the 


500  BROWN    V.    ALABASTER  [CHAP.   VIII 

plaintiff's  own  land  at  a  trifling  expense.  The  terms  of  the  deed 
are  not  given  in  the  report  of  the  case,  and  the  decision  may  perhaps 
be  supported  on  the  ground  that  the  conveyance  was  of  part  of  a 
house,  having  obvious  existing  relations  to  and  dependencies  upon 
the  other  part  of  the  building.  Thus  it  is  a  familiar  principle  that 
in  a  grant  of  a  messuage,  a  farm,  a  manor,  or  a  mill,  many  things 
will  pass  which  have  been  used  with  the  principal  thing,  as  parcel 
of  the  granted  premises,  which 'would  not  pass  under  the  grant  of  a 
piece  of  land  by  metes  and  bounds.  In  such  cases  it  is  only  a  ques- 
tion of  the  construction  of  terms  of  description. 

But  where  there  is  a  grant  of  land  by  metes  and  bounds,  without 
express  reservation,  and  with  full  covenants  of  warranty  against 
encumbrances,  we  think  there  is  no  just  reason  for  holding  that  there 
can  be  any  reservation  by  implication,  unless  the  easement  is 
strictly  one  of  necessity.  Where  the  easement  is  only  one  of  existing 
use  and  great  convenience,  but  for  which  a  substitute  can  be  furnished 
by  reasonable  labor  and  expense,  the  grantor  may  certainly  cut  him- 
self off  from  it  by  his  deed,  if  such  is  the  intention  of  the  parties. 
And  it  is  difficult  to  see  how  such  an  intention  could  be  more  clearly 
and  distinctly  intimated  than  by  such  a  deed  and  warranty. 

The  presiding  judge  ruled,  as  a  matter  of  law,  that  no  right  of 
drainage  was  reserved  under  the  deed  to  Richardson  in  1812,  and  we 
have  some  doubt  whether  the  evidence  reported  would  have  sup- 
ported a  verdict  to  the  contrary.  But  as  the  case  must  go  to  a  new 
trial  upon  another  ground,  and  there  was  some  evidence  of  the 
necessity  of  the  drain,  and  the  nature  and  extent  of  the  necessity  do 
not  appear  to  have  been  distinctly  presented  as  a  subject  of  ruling 
by  the  court,  it  will  be  proper  that  it  should  be  submitted  to  the  jury 
under  suitable  instructions  upon  this  point.^ 


BROWN  V.  xVLABASTER 
37  Ch.  D.  490.     1887. 

By  a  lease,  dated  the  5th  of  October,  1877,  a  plot  or  piece  of  build- 
ing land  at  the  corner  of  Augusta  Road  and  Park  Road,  at  Moseley, 
Worcestershire,  and  indicated  on  a  plan  in  the  margin  of  the  lease, 

1  And  see  Walker  v.  Clifford,  128  Ala.  67;  Preble  v.  Reed,  17  Maine  169, 
175;  Bums  v.  Gallagher,  62  Md.  462;  Broim  v.  Fuller,  165  Mich.  162;  Dab- 
ney  v.  Child,  95  Miss.  585;  Burr  v.  Mills,  21  Wend.  (N.  Y.)  290;  Wells  v. 
Garbutt,  132  N.  Y.  430;  Crosland  v.  Rogers,  32  S.  C.  130;  Howley  v.  Cha^ee, 
88  Vt.  468;  Shaver  v.  Edgell,  48  W.  Va.  502.  508;  Attrill  v.  Piatt,  10  Can. 
Sup.  Ct.  425. 

But  compare  Cheda  v.  Bodkin.  173  Cal.  7,  14;  Znamaneck  v.  Jelinek, 
69  Neb.  110;  Dunklee  v.  Wilton  R.  Co.,  24  N.  H.  489;  Toothe  v.  Bryce, 
50  N.  J.  Eq.  589;  Taylor  v.  Wright.  76  N.  J.  Eq.  121;  Lampman  v.  Milk.-^. 
21  N.  Y.  505;  Seibert  v.  Levan,  8  Pa.  383;  Sharpe  v.  Scheible,  162  Pa.  341; 
Harwood  v.  Benton,  32  Vt.  724;  Miller  v.  Skaggs,  79  W.  Va.  645,  648. 


SECT.    I]  BROWN    V.    ALABASTER  501 

was  demised  by  the  lessors  to  William  Letts,  without  any  general 
words,  for  the  term  of  ninety-nine  years  at  the  rent  thereby  reserved, 
a  right  being  granted  to  Letts  of  erecting  a  party-wall  on  the  north- 
east boundary  of  the  land. 

By  another  lease  of  the  same  date  a  larger  plot  or  piece  of  building 
land  immediately  adjoining,  and  indicated  on  a  plan  in  the  margin 
of  the  lease,  was  demised  by  the  same  lessors  to  Letts,  "  together  with 
all  ways,  rights,  easements,  and  appurtenances  belonging  thereto," 
for  the  term  of  ninety-nine  years  at  the  rent  thereby  reserved,  a  right 
being  granted  to  Letts  of  erecting  a  party-wall  on  the  north-east 
boundary  of  the  land. 

Shortly  after  the  date  of  the  leases  Letts  built  a  boundary  or  party- 
wall  along  the  north-east  side  of  both  plots,  and  on  part  of  the  first 
plot  he  built  a  house  called  "  Normanhurst."  The  second  or  larger 
plot  he  divided  into  two,  and  on  part  of  the  half  plot  next  "  Xornian- 
hurst  "  built  a  house  called  "  Cottisbrook,"  and  on  part  of  the  other 
half  plot  a  house  called  "  "Westbourne."  All  three  houses  fronted 
towards,  and  had  entrances  into,  Park  Road,  the  ground  behind  each 
being  enclosed  and  laid  out  as  a  garden. 

The  garden  of  "  Westbourne "  extended  right  up  to  the  above- 
mentioned  party-wall,  but  the  gardens  of  "  Cottisbrook  "  and  "  Nor- 
manhurst  "  stopped  about  four  feet  short  of  it,  a  strip  of  land  thus 
being  left  between  the  party-wall  and  those  two  gardens.  This  strip 
of  land  thus  divided  off  and  separated  from  the  other  land  comprised 
in  the  two  leases,  Letts  laid  out  as  a  back  private  way  from 
Augusta  Road  to  the  gardens  of  "  Cottisbrook  "  and  *'  Westbourne," 
this  backway  being  inclosed  throughoixt  its  length  on  the  one  side  by 
the  party-wall  and  on  the  other  by  the  garden  walls  of  "  Norman- 
hurst  "  and  "  Cottisbrook."  "  Cottisbrook  "  and  "  Westbourne  "  each 
had  a  gate  in  its  garden  wall  opening  into  the  back-way,  but  "  Nor- 
manhurst "  had  none,  as  it  had  a  side  entrance  directly  into  Augusta 
Road.  The  entrance  from  the  back-way  into  Augusta  Road,  Avhich 
was  a  public  road,  was  closed  by  a  gate  which  was  usually  kept 
locked,  and  of  which,  until  the  assignment  to  the  defendant  here- 
after stated,  Letts  or  his  agent  had  the  key. 

A  plan  of  the  properties  appears  on  the  next  page. 

The  back-way  having  thus  been  formed  and  used  as  a  mode  of 
access  to  the  gardens  of  "  Cottisbrook  "  and  "  Westbourne,"  by  an 
indenture,  dated  the  29th  of  June,  1878  —  after  reciting  the  second 
lease  and  the  erection  of  the  two  houses  "  Cottisbrook  "  and  '*  West- 
bourne "  —  Letts  assigned  to  John  Aston  and  George  Lyttelton 
Aston,  "All  and  singular  the  said  piece  of  land  and  premises  com- 
prised in  and  demised  by  the  hereinbefore  recited  indenture  of  lease 
or  expressed  so  to  be,  and  also  all  those  the  said  two  messuages  erected 
on  the  said  piece  of  land,  together  witli  their  and  every  of  their 
rights,  members  and  appurtenances,"  for  the  residue  of  the  said  term 
of  ninety-nine  years  granted  by  such  lease,  by  way  of  mortgage  for 


502 


BROWN    V.    ALABASTER 


[chap.   VIII 


securing  £950  and  interest.  The  terms  of  that  assignment  thus  in- 
cluded the  site  of  so  much  of  the  back-way  as  was  conterminous 
with  "  Cottisbrook." 

By  an  indenture  of  the  2d  of  July,  1878,  Letts  assigned  the  plot 
of  land  demised  by  the  first  lease,  and  also  the  house  thereon,  calle<i 


Party 


Wa  L  L 


P  A   R   K 


Road 


n 


"  K'ormanhurst,"  "  with  their  and  every  of  their  appurtenances,"  to 
John  Careless  for  the  residue  of  the  term  by  way  of  mortgage  for 
securing  £700  and  interest.  The  plot  of  land  comprised  in  that 
assignment  was  therein  described  by  identically  the  same  description 
as  that  in  the  lease,  and  consequently  the  assignment  included  the  soil 
of  so  much  of  the  back-way  as  was  conterminous  with  "  Norman- 
hurst." 

By  an  indenture  of  the  14th  of  December,  1878,  after  reciting  the 


SECT.    l]  BROWN    V.    ALABASTER  503 

second  lease  of  the  oth  of  October,  1877,  with  the  description  of  the 
plot  comprised  therein,  and  also  the  mortgage  of  the  29th  of  June, 
1878,  to  J.  Aston  and  G.  L.  Aston,  Letts  and  his  said  mortgagees, 
J.  Aston  and  G.  L.  Aston,  for  the  considerations  therein  mentioned, 
assigned  to  the  defendant  Edward  Alabaster,  for  the  residue  of  the 
term  granted  by  that  lease,  and  discharged  from  the  mortgages 
thereon,  "All  the  said  piece  or  parcel  of  land,  hereditaments,  and 
premises  by  the  said  indenture  of  the  5th  day  of  October,  1877,  ex- 
pressed to  be  demised,  together  with  the  two  messuages  or  dwelling- 
houses  (' Cottisbrook  '  and  '  Westbourne ')  erected  thereon  since  the 
date  of  the  said  lease,  with  their  rights,  easements,  and  appurte- 
nances." Upon  the  execution  of  that  assignment  Letts  handed  to 
the  defendant  the  keys  of  the  garden  gates  of  "  Cottisbrook  "  and 
"  Westbourne,"  and  also  the  key  of  the  gate  leading  from  tin;  back- 
Avay  into  Augusta  Road. 

By  an  indenture  of  the  13th  of  November,  1879,  Letts,  for  the  con- 
sideration therein  mentioned,  assigned  the  plot  of  land  "  comprised  in 
and  demised  by  "  the  first  lease,  and  also  the  house  thereon  called 
"  Normanhurst,"  together  Avith  the  appurtenances,  to  one  Flint,  ab- 
solutely, for  the  residue  of  the  term,  but  subject  to  the  mortgage  to 
Careless:  and  by  an  indenture  of  the  13th  of  December,  1880,  Care- 
less and  Flint,  for  the  consideration  thereiti  mentioned,  assigned  the 
same  premises  to  the  plaintiff,  Henry  Brown,  for  the  residue  of  the 
term,  discharged  from  the  mortgage  thereon. 

Neither  of  the  assignments  of  "  Normanhlirst  "  contained  any  reser- 
vation in  terms  of  a  right  of  way  for  the  owners  or  occupiers  of 
"  Cottisbrook  "  or  "  Westbourne  "  over  the  piece  of  private  Avay  at 
the  back  of  "  Normanhurst,"  and,  in  fact,  none  of  the  deeds  relating 
to  the  several  properties  noticed  the  existence  of  the  back-way,  or 
contained  any  reference  to  it  in  express  terms.  There  were  no  plans 
to  any  of  the  deeds  except  the  two  original  leases,  and  each  of  those 
plans  showed  simply  a  rectangular  piece  of  land  colored  pink,  which 
included  tlie  soil  of  the  corresponding  piece  of  the  back-waj',  but 
without  any  line  or  other  indication  of  an  intended  back-way. 

Disputes  having  arisen  between  the  plaintiff'  and  the  defendant  as 
to  whether  the  defendant  had,  under  the  assignment  to  him,  any  right 
of  way  over  the  plaintiff's  piece  of  the  private  way  at  the  back  of 
"  Normanhurst,"  the  plaintiff  brought  this  action,  claiming  a  declara- 
tion that  the  defendant  was  not  entitled,  as  against  the  plaintiff',  to 
any  right  of  way  from  or  to  the  defendant's  two  houses  over  or 
across  the  plaintiff's  land  demised  by  the  first  lease  to  or  from 
Augusta  Road;  and  an  injunction  to  restrain  the  defendant  from 
passing  over  or  otherwise  trespassing  upon  the  plaintiff's  said  land. 
In  his  statement  of  claim  the  plaintiff  alleged  that  none  of  the 
deeds  under  which  he  and  the  defendant  respectively  claimed,  con- 
tained any  reservation  or  grant  of  any  right  of  way  over  the  land 
demised  by  the  first  lease  to  or  for  the  benefit  of  the  owner,  lessee. 


504  BROWN    V.    ALABASTER  [CHAP.    VIII 

or  occupier  of  the  liereditaments  comprised  in  the  second  k^ase;  and 
that,  consequently,  the  defendant  was  not  entitkid  to  any  such  right 
of  way. 

The  statement  of  defence  contained  the  following  allegations: 

"  (7.)  Prior  to  and  at  the  date  of  the  said  indenture  of  the  14th 
of  December,  1878  "  —  the  assignment  of  "  Cottisbrook  "  and  "  West- 
bourne  "  to  the  defendant  —  "  and  prior  to  the  29th  of  June,  1878  " 
—  the  date  of  the  mortgage  of  those  two  properties  —  "  the  said  way 
or  passage  was,  and  ever  since  has  been,  necessary  for  the  proper 
enjoyment  of  the  part  of  the  land  and  houses  conveyed  thereby  and 
for  which  it  had  been  previously  used.  Without  the  said  way  or 
passage,  egress  or  ingress  from  the  back  part  of  the  two  houses 
could  not  and  cannot  be  made.  It  was  a  continuous  and  apparent 
way  or  passage  used  by  the  said  William  Letts,  the  common  owner 
of  what  is  now  the  plaintiff's  and  defendant's  land,  previous  to 
and  at  the  time  of  the  making  of  the  said  indenture  and  prior  to  the 
29th  of  June,  1878,  and  was  necessary  for  the  comfortable  enjoyment 
of  the  part  granted  by  him  to  the  defendant ;  and  by  the  grant  of  the 
land  and  houses  thereon  of  the  14th  of  December,  1878,  the  said 
William  Letts  passed  the  right  of  way  over  the  said  way  or  passage 
to  the  defendant. 

"  (8).  The  said  way  or  passage  was  incident  to  the  defendant's 
grant  under  the  indenture  of  December  14th,  1878,  which  recited  the 
indenture  of  the  29th  of  June,  1878. 

"  (9.)  Furthermore,  there  was  at  the  time  of  the  making  of  the 
indentures  of  the  29th  of  June,  1878,  and  of  the  14th  of  December, 
1878,  an  implied  grant  of  the  way  or  passage  to  the  defendant,  and 
the  said  J.  Aston  and  G.  L.  Aston."  And  lastly,  the  defendant 
insisted  that  for  the  reasons  aforesaid  the  plaintiff  was  not  entitled 
to  the  declaration  or  relief  he  asked. 

The  plaintiff  thereupon  joined  issue,  and  the  action  now  came  on 
for  trial. 

A  plan  of  the  property  —  of  which  plan  the  above  is  a  reduced 
copy  —  was  put  in  evidence ;  and  it  was  in  fact  admitted  by  the  plain- 
tiff that  at  the  dates  of  the  indentures  of  the  29th  of  June,  1878,  and 
the  14th  of  December,  1878,  the  back-way  was  existing  as  shown  on 
the  plan,  with  the  two  gates  opening  into  the  gardens  of  "  Cottis- 
brook "  and  "  Westbourne." 

The  plan  also  showed,  as  the  fact  was,  that  "  Cottisbrook  "  and 
"  Westbourne "  each  had,  in  addition  to  the  usual  front  or  main 
entrance  to  the  house,  a  side  or  tradesmen's  entrance  by  an  open 
passage  about  five  feet  wide  from  Park  Road,  leading  up  to  a  side 
door,  which  by  one  step  upwards  gave  admission  into  a  back  hall 
or  passage  about  four  feet  wide,  paved  with  encaustic  tiles,  and 
communicating  on  one  side  with  the  entrance-hall  of  the  house  and 
on  the  other  with  the  kitchen  and  other  domestic  offices.  At  the 
further  end  of  this  back  hall  or  passage,   a   door  opened  by  two 


SECT.    l]  BROWN    V.    ALABASTER  '  505 

descending  steps  into  the  back  garden  of  the  house.  Beyond  the 
kitchen  and  offices  were  a  privy  and  midden;  and  the  evidence 
showed  that  in  the  absence  of  a  right  of  way  from  Augusta  Road  to 
the  garden  and  back  premises  of  the  house,  the  only  mode  of  convey- 
ing manure,  &c.,  into  the  garden,  or  of  carrying  away  refuse  from 
the  back  premises,  was  by  going  through  the  tiled  passage  or  back 
hall  of  the  house.  The  plaintiif's  surveyor  admitted  in  cross-exam- 
ination that  the  back-way  was  essential  to  the  comfortable  enjoyment 
of  each  of  the  two  houses,  as  being  the  only  convenient  way  by  which 
manure  could  be  taken  into  the  garden,  coals  brought  into  the  house, 
or  the  contents  of  the  midden  and  privy  removed. 

Kay,  J.  This  case  raises  a  question  of  very  considerable  interest, 
which  has  been  discussed  in  a  great  many  authorities,  several  of 
which  have  been  cited  to  me. 

[His  Lordship,  after  describing  the  three  properties,  "  West- 
bourne,"  "  Cottisbrook,"  and  "  Normanhurst,"  and  the  approaches  to 
the  gardens  of  the  two  first-mentioned  properties  from  Park  Road 
in  front  through  the  passage  or  back  hall,  and  from  Augusta  Road 
by  the  back-way  at  the  rear,  said  it  was  obvious  that  the  passage  or 
back  hall  was  not  intended  for  the  removal  of  garden  manure,  or  any- 
thing of  that  kind,  and  could  not  really  be  conveniently  used  for 
that  purpose,  and  that  at  the  date  of  the  assignment  of  the  14th  of 
December,  1878,  by  which  "  Westbourne "  and  "Cottisbrook"  be- 
came vested  in  the  defendant,  and  of  the  assignment  of  the  13th  of 
November,  1879,  by  which  "Normanhurst"  became  vested  in  the 
plaintiff's  immediate  predecessor  in  title,  the  back-way  was  the  most 
convenient  way,  and  an  obviously  intended  convenience,  for  approach- 
ing the  gardens  of  "  "Westbourne  "  and  "  Cottisbrook,"  and  that  it 
did  not  afford  any  communication  Avhatever  to  the  garden  of  "  Nor- 
manhurst," which  was  completely  walled  off  from  it.  His  Lord- 
ship then  stated  the  two  last-mentioned  assignments  and  the  assign- 
ment in  1880  to  the  plaintiff,  and  proceeded: — ]  So  that  the  plain- 
tiff took,  by  conveyance,  "  Normanhurst,"  after  "  Cottisbrook  "  and 
"Westbourne"  had  been  sold  and  conveyed  to  the  defendant.  At 
the  time  the  defendant  bought,  this  formed  back-way  Avas  existing, 
and  there  were  gates  from  it  into  the  gardens  both  of  "  Westbourne  " 
and  "  Cottisbrook." 

Now,  the  question  is,  whether  the  conveyance  to  the  defendant, 
which  contains  nothing  applicable  to  a  right  of  way  along  this  back- 
way,  but  the  ordinary  general  words  "  rights,  easements  and  apjuirte- 
nances,"  passed  a  right  of  way  through  those  gates  from  tlie  gardens 
of  "Cottisbrook"  aiid  "Westbourne"  along  this  back-wiiv  into 
Augusta  Road. 

Of  course  at  the  time  when  the  conveyance  was  made  this  right 
of  way  was  in  no  sense  an  easement,  because  all  three  j)roperties 
belonged  to  the  same  person;  and  the  question  divides  itself  into  two 
—  first  of  all,  was  this  way  a  way  of  necessity?     And,  secondly,  if 


506  *  BROWN    V.    ALABASTER  [CHAP.   VIII 

it  was  not  a  way  of  necessity,  could  it  be  held  to  pass  by  implied 
grant  ? 

Now,  as  a  way  of  necessity  I  think  it  is  difficult  to  support  it,  for 
the  following  reason.  A  way  of  necessity  is  not  a  defined  way,  A 
way  of  necessity  is  a  way  which  is  the  most  convenient  access  to  a 
land-locked  tenement  over  other  property  belonging  to  the  grantor; 
and  it  is  quite  clear  that  the  grantor  has  a  right  himself  to  elect  in 
which  line,  in  which  course,  the  way  of  necessity  should  go.  Here, 
there  is  no  case  of  election.  The  claim  is  to  a  way  over  this  particu- 
lar road,  without  any  right  of  election  at  all  on  the  part  of  the 
grantor.  That  of  itself  would  be  enough  to  show  it  is  not  a  way  of 
necessity.  But  there  is  also  this  consideration ;  if  it  be  a  way  of 
necessity,  then,  whether  it  had  been  formed  or  not,  the  way  would 
pass  over  the  ground  of  "  ISTormanhurst  " ;  that  is  to  say,  supposing 
there  had  been  no  back-way  and  the  gardens  of  "  Westbourne  "  and 
"  Cottisbrook "  had  been  completely  shut  off  from  communication 
with  any  road  except  through  the  passages  in  these  houses,  the  tiled 
passages  which  I  have  described,  if  the  purchasers  of  "  Cottisbrook  " 
and  "  Westbourne  "  were  entitled  to  ways  of  necessity,  it  must  follow 
that  "  Westbourne,"  which  is  the  most  eastern  of  these  properties, 
would  be  entitled  to  a  way  of  necessity  over  the  ground  of  "  Cottis- 
brook," and  over  the  ground  of  "  ISTormanhurst,"  and  that  "  Cottis- 
brook," which  is  the  middle  one,  would  be  entitled  to  a  way  of 
necessity  over  the  ground  of  "  Normanhurst."  To  my  mind  it  is 
clearly  impossible  so  to  hold,  because,  if  any  one  had  bought  "  West- 
bourne "  or  "  Cottisbrook  "  without  any  access  over  the  ground  of 
"  Normanhurst  "  to  Augusta  Road,  but  only  with  access  to  the  garden 
by  means  of  a  tiled  passage,  it  seems  to  me  quite  impossible  to  say 
that  he  should  also  have  over  the  adjoining  land,  which  was  then  a 
garden  laid  out  as  the  garden  of  the  house,  a  way  in  some  direction 
or  another  into  Augusta  Road.  Therefore  I  am  clearly  of  opinion 
that  this  is  not  a  way  of  necessity. 

Then  comes  the  question  whether,  even  if  it  be  not  a  way  of  neces- 
sity, it  may  not  pass  under  the  doctrine  of  an  implied  grant  of  a 
continuous  and  apparent  easement.  It  is  said,  and  forcibly,  that  a 
right  of  way  is  not  a  continuous  and  apparent  easement,  and  for 
that  is  cited  a  passage  from  Mr.  Gale's  well-known  book;  but  no 
other  authority  has  been  cited. 

Let  us  see  how  the  law  stands.  In  the  case  of  Hinchliife  v.  Earl 
■  of  Kinnoul,  5  Bing.  N.  C.  1,  part  of  the  tenement  granted  consisted 
of  a  coal  shoot  and  of  certain  pipes,  and  Lord  Chief  Justice  Tindal 
said,  5  Bing.  IST.  C.  24 :  "  We  cannot  therefore  feel  any  doubt,  but 
that  under  the  description  contained  in  the  lease,  the  coal  shoot  and 
the  several  pipes  passed  to  the  lessee  as  a  constituent  part  of  the 
messuage  or  dwelling-house  itself." 

In  that  case  there  was  over  an  adjoining  tenement  of  the  lessor 
a  passage  by  which  this  coal  shoot  and  the  pipes  could  be  approached, 


SECT,    l]  BROWN    V.    ALABASTER  507 

and  the  jury  found  in  their  verdict  that  the  passing  and  re-passing 
over  that  way  or  passage  was  not  merely  convenient  but  necessary' 
"  for  the  use  of  the  coal  shoot,  and  of  the  pipes,  and  of  the  repairing 
and  amending  the  same,  and  the  side  or  wall  of  the  house."  Upon 
that  the  judgment  proceeds,  5  Bing.  X.  C.  25 :  "  Since,  therefore,  as 
it  appears  to  us,  the  right  in  question  "  (that  is  the  right  of  passing 
to  and  from  this  coal  shoot  and  pipes)  "  passed  to  the  lessees  under 
the  reversionary  lease  of  1819,  as  incidental  to  the  enjoyment  of  that 
which  was  the  clear  and  manifest  subject  matter  of  demise,  it  bo- 
comes  unnecessary  to  consider  the  question  argued  at  the  bar  before 
us,  how  far  the  same  right  might  or  not  pass  to  the  lessees  under  the 
express  words  used  in  the  lease  itself,  as  '  an  appurtenant  unto  the 
said  piece  or  parcel  of  ground,  messuage  or  tenement,  erections, 
buildings,  and  premises,  belonging  or  appertaining.'  There  are 
strong  authorities  in  the  law  books  to  show  these  words  capable  of 
a  wider  interpretation,  and  of  carrying  more  than  is  an  appurtenant 
in  the  strictly  legal  sense  of  that  word,  where  such  interpretation  is 
necessary  in  order  to  give  that  word  some  operation."  The  learned 
Judge  refers  to  the  cases  and  then  says :  "  But  we  think  it  at  once 
sufficient,  and  at  the  same  time  safer,  to  rely  upon  the  ground  on 
which  we  have  already  held  that  the  right  claimed  by  the  plaintiif 
may  be  supported,  and  to  give  no  opinion  on  this  second  point." 
That  case  has  been  followed  and  commented  on  in  a  great  inany  sub- 
sequent cases. 

The  rule  laid  dov/n  in  Sheppard's  Touchstone,  page  89,  is  that,  by 
the  grant  of  anything,  "  conceditur  etiam  et  id  sine  quo  res  ipsa  non 
esse  potuit."    That  seems  to  be  really  the  case  of  a  way  of  necessity. 

In  Langley  v.  Hammond,  Law  Rep.  3  Ex.  161,  there  was  a  sur- 
render by  a  lessee  to  his  lessor  of  part  of  the  demised  premises, 
"  together  with  all  ways,  &c.,  therewith  now  used,  occupied,  and 
enjoyed ;  "  and  in  that  case  Lord  Bramwell's  words,  which  have  been 
referred  to  in  subsequent  cases,  were  these  (Law  Kcp.  3  Ex.  170)  : 
*'  Suppose  a  house  to  stand  100  yards  from  a  highway,  and  to  be 
approached  by  a  road  running  along  the  side  of  a  field,  used  for  no 
other  purpose,  but  only  fenced  off  from  the  field,  which  I  assume  to 
be  the  property  of  the  owner  of  the  house.  I  should  wish  for  time  to 
consider  before  deciding  that  on  the  conveyance  of  the  house  the 
right  to  use  that  road,  not  being  a  way  of  necessity,  would  not  pass 
under  such  words  as  these."  Those  words  being,  as  I  have  said, 
"  therewith  now  used,  occupied,  and  enjoyed."  That  Avas  the  point 
which  was  raised  in  the  well-known  case  of  James  v.  Plant,  -1  Ad. 
(t  E.  749. 

In  the  later  well-known  case  of  Waffs  v.  Kelson,  Law  Rep.  6  Ch. 
166,  Lord  Justice  Mellish,  in  delivering  judgment,  said  (Law  Rep.  6 
Ch.  174)  :  "  We  may  also  observe  that,  in  Langley  v.  Hammond,  Law 
Rep.  3  Ex.  161,  Baron  Bramwell  expressed  an  opinion,  in  which  we 
concur,  that  even  in  the  case  of  a  right  of  Avay,  if  there  was  a  formed 


508  BROWN   V.   ALABASTER  [CHAP.   VlII 

road  made  OA'er  the  alleged  servient  tenement,  to  and  for  the  apparent 
use  of  the  dominant  tenement,  a  right  of  way  over  such  road  might 
pass  by  a  conveyance  of  the  dominant  tenement  with  the  ordinary 
general  words."  I  think  there  is  a  mistake  there:  the  words  before 
Lord  Bramwell  were  not  the  ordinary  words,  but  were  extraordinary 
general  words,  such  as  those  used  in  James  v.  Plant,  4  Ad.  &  E.  749. 

In  an  earlier  authority  —  Pearson  v.  Spencer,  3  B.  &  S.  761  —  the 
case  is  thus  stated  in  the  head-note :  "  Where  the  owner  of  a  farm 
divided  it  by  his  will  into  two  portions,  devising  them  to  A.  and  B. 
respectively,  and  the  portion  of  B.  was  landlocked,  so  that  in  order 
to  reach  it  it  was  necessary  that  he  should  have  a  right  of  way  over 
the  property  of  A.,  and  the  devisor  during  his  life  had  used  a  way  in 
a  certain  direction  over  that  property:  held,  affirming  the  decision 
of  the  Queen's  Bench,  that  a  right  to  use  that  way  passed  to  B.  by 
the  devise." 

ISTow  I  pause  there  to  say  that  this  is  distinctly  an  advance  of  the 
doctrine.  That  particular  way  was  not  of  course  necessarily  a  way 
of  necessity.  It  was  not  held  that  a  way  of  necessity  passed,  but 
that  this  particular  way  passed,  and  the  ground  of  the  judgment 
given  by  Chief  Justice  Erie  is  this  (3  B.  &  S.  767)  :  "  We  have  been 
much  struck  with  the  argument  of  Mr.  Mellish,  in  which  he  con- 
tended that,  if  this  right  of  way  were  taken  as  a  right  of  way  of 
necessity  simply,  the  way  claimed  by  the  defendant  could  not  be 
maintained;  because  we  are  inclined  to  concur  with  him  that  a  way 
of  necessity,  strictly  so  called,  ends  with  the  necessity  for  it,  and 
the  direction  in  which  the  plaintiff  says  the  way  ought  to  go  would  so 
end.  But  we  sustain  the  judgment  of  the  Court  below  on  the  con- 
struction and  effect  of  James  Pearson's  will  taken  in  connection  with 
the  mode  in  which  the  premises  were  enjoyed  at  the  time  of  the 
will.  The  testator  had  a  unity  of  possession  of  all  this  property; 
he  intended  to  create  two  distinct  farms  with  two  distinct  dwelling- 
houses,  and  to  leave  one  to  the  plaintiff  and  the  other  to  the  party 
under  whom  the  defendant  claims.  The  way  claimed  by  the  defend- 
ant was  the  sole  approach  that  was  at  that  time  used  for  the  house 
and  farm  devised  to  him.  Then  the  devise  of  the  farm  contained, 
under  the  circumstances,  a  devise  of  a  way  to  it,  and  we  think  the 
way  in  question  passed  with  that  devise.  It  falls  under  that  class 
of  implied  grants  where  there  is  no  necessity  for  the  right  claimed, 
but  where  the  tenement  is  so  constructed  as  that  parts  of  it  involve 
a  necessary  depenclance,  in  order  to  its  enjoyment  in  the  state  it  is 
in  when  devised,  upon  the  adjoining  tenement.  There  are  rights 
which  are  implied,  and  we  think  that  the  farm  devised  to  the  party 
under  whom  the  defendant  claims  could  not  be  enjoyed  without  de- 
pendance  on  the  plaintiff's  land  of  a  right  of  way  over  it  in  the 
customary  manner."  There  is  the  distinct  decision  of  the  Court 
of  Exchequer  Chamber  that  a  way  in  a  particular  defined  route 
which  is  not  a  way  of  necessity  may,  nevertheless,  pass  by  implied 


SECT.    l]  BROWN    V.   ALABASTER  509 

grant  —  implied  grant,  that  is,  by  the  owner  who  has  unity  of  pos- 
session both  of  the  close  granted  and  of  the  adjoining  close  over 
which  that  particular  way  passed. 

In  Wheeldon  v.  Burrows,  12  Ch.  D.  31,  as  is  well  known,  the  Court 
of  Appeal  drew  a  distinction  on  the  much-contested  question  what 
rights  were  reserved  to  a  grantor,  and  the  distinction,  as  taken  in  the 
language  of  Lord  Justice  Thesiger,  which  has  been  much  considered 
and  approved  of  by  other  Judges,  and  which  has  been  often  quoted 
since,  is  this  (12  Ch.  D.  49)  :  "  We  have  had  a  considerable  number 
of  cases  cited  to  us,  and  out  of  them  I  think  that  two  propositions 
may  be  stated  as  what  I  may  call  the  general  rules  governing  cases  of 
this  kind.  The  first  of  these  rules  is,  that  on  the  grant  by  the  owner 
of  a  tenement  of  part  of  that  tenement  as  it  is  then  used  and  enjoyed, 
there  will  pass  to  the  grantee  all  those  continuous  and  apparent 
easements  (by  which,  of  course,  I  mean  guasi-easements)  "  —  and 
the  interpretation  there  interposed  is  necessary,  because,  where  the 
owner  of  two  tenements  grants  one  of  them,  there  can  be  no  easement 
at  the  moment  of  the  grant  over  the  other  tenement,  the  two  tene- 
ments having  belonged  to  one  and  the  same  person,  and  an  easement 
being  a  right  over  the  land  of  somebody  else  —  "  or,  in  other  words^ 
all  those  easements  which  are  necessary  to  the  reasonable  enjoj'ment 
of  the  property  granted,  and  which  have  been  and  are  at  the  time 
of  the  grant  used  by  the  owners  of  the  entirety  for  the  benefit  of  the 
part  granted.  The  second  proposition  is  that,  if  the  grantor  intends 
to  reserve  any  right  over  the  tenement  granted,  it  is  his  duty  to 
reserve  it  expressly  in  the  grant."  That  is  the  broad  distinction 
which  has  been  recognized,  as  far  as  I  know,  ever  since,  between  the 
implied  grant  of  an  easement  and  the  reservation  of  an  easement. 

In  the  case  of  BayJey  v.  Great  Western  Railway  Company,  26  Ch. 
T).  434,  the  point  came  before  the  Court  of  Appeal.  That  was  a  case 
where  the  railway  company  had  purchased  a  piece  of  land  on  which 
was  a  stable,  and  by  the  conveyance  to  the  company  the  premises 
were  granted  "  with  all  rights,  members  or  appurtenances  to  the 
hereditaments  belonging  or  occupied  or  enjoyed  as  ]>art,  parcel  or 
member  thereof."  The  vendor  had  many  years  previously  made  a 
private  road  from  the  highway  into  the  stable  over  his  own  land  for 
his  own  convenience,  and  had  used  it  ever  since.  The  soil  of  the  road 
was  not  conveyed  to  the  company,  and  no  express  mention  of  it  was 
made  in  the  conveyance,  and  it  was  held  that,  notwithstanding  the 
unity  of  possession  of  the  stable  and  private  house,  the  right  of  Avay 
passed  to  the  company  under  the  general  words  of  the  conveyance. 
In  that  case  Lord  Justice  Bowen  says  this,  26  Ch.  D.  453 :  "  This 
particular  case  is  not  a  case  of  a  way  of  necessity,  though  I  d<i  not 
say  that  there  might  not  Jje  ways  which  would  pass  by  implication 
as  ways  of  necessity,  even  if  they  were  only  reasonably  necessary  and 
not  ])hysi('ally  necessary."  I  do  not  mean  to  rely  in  the  least  on  that 
dictum,  because,  as  I  have  said,  here  we  have  not  got  the  case  of  a 
way  of  necessity. 


510  BROWN    V.    ALABASTER  [CHAP.   VIII 

But  there  is  another  authority  of  Ford  v.  AlefropoJiian  Railway 
Companies,  17  Q.  B.  D.  12,  which  was  before  the  Court  of  Appeal. 
The  case  is  thus  stated  in  the  head-note:  "A  house  was  divided 
into  a  front  and  a  back  block :  and  the  plaintiffs  were  lessees  of 
three  rooms  on  the  first  floor  in  the  back  block.  The  lease  did  not 
expressly  grant  any  mode  of  access.  Access  to  the  rooms  demised 
to  the  plaintiffs  was  gained  from  the  street  by  passing  through  a 
hall  or  vestibule,  and  then  up^some  stairs  to  the  plaintiffs'  rooms. 
The  defendants,  in  the  exercise  of  compulsory  powers  under  the 
Raihvays  Clauses  Consolidation  Ad,  took  down  the  front  block  of 
the  house  and  removed  the  hall.  The  interference  with  the  hall  and 
the  injury  to  the  access  to  the  rooms  of  which  the  plaintiffs  were 
lessees,  lessened  their  value.  An  arbitrator  having  awarded  com- 
pensation to  the  plaintiffs  under  the  Lands  and  Raihvays  Clauses 
Consolidation  Acts:  —  Held,  that  the  award  was  valid  on  the  grounds, 
first,  that  compensation  may  be  obtained  under  the  Railways  Clauses 
Consolidation  Acts,  1845,  for  injury  done  to  land  by  the  execution 
of  the  works,  if  it  is  sufficient  to  lessen  the  value  thereof;  secondly, 
that  the  access  through  the  hall  was  not  a  way  of  necessity,  but  was 
in  the  nature  of  a  continuous  and  apparent  easement  which  passed 
under  the  demise  of  the  rooms,  and  that  an  interference  with  this 
quasi-easement  was  sufficient  to  give  rise  to  a  valid  claim  for 
compensation." 

That  was  not  a  case  which  depended  upon  any  extraordinary 
general  words  like  "used  and  enjoyed;"  but  the  Court,  on  looking 
at  the  surrounding  facts,  found  there  was  a  formed  mode  of  access 
through  other  property  adjoining  belonging  to  the  grantor,  and 
accordingly  came  to  the  conclusion  that  there  was  an  implied  grant 
of  that  particular  formed  mode  of  access,  although  there  were  no 
special  words  referring  to  it,  and  no  general  words  which  could 
extend  the  grant,  like  the  words  "  usually  held  and  enjoyed  there- 
with." Indeed  it  has  been  doubted  —  and  on  that  there  seems  to 
be  a  present  conflict  of  authority  —  whether  those  words  "  usually 
held  and  enjoyed  "  have  any  effect  in  a  matter  of  this  kind :  because 
Lord  Roniilly,  M.R.,  in  Thomson-  v.  Waterlow,  Law  Rep.  6  Eq.  36, 
said  the  question  was,  whether  you  could,  by  those  words,  create  an 
easement.  That  doubt  of  his  is  commented  upon  in  Kay  v.  Oxley, 
Law  Rep.  10  Q.  B.  360,  by  Lord  Blackburn,  who  says  (Law  Rep.  10 
Q.  B.  367),  "  But  I  cannot  agree  that,  upon  the  construction  of  words 
like  those  in  the  conveyance  here  in  question,  they  cannot  as  a  matter 
of  law  create  a  right  of  way  that  did  not  previously  exist  as  a 
right." 

I  leave  that  contest  where  it  is;  but  it  seems  to  me  that  the  law 
is  this  —  that  a  particular  formed  way  ^  an  entrance  to  premises 
like  these,  "  "Westbourne  "  and  "  Cottisbrook,"  which  leads  to  gates 
in  a  wall,  part  of  these  demised  premises,  and  without  which  those 
gates  would  be  perfectly  useless,  may  pass,  although  in  some  sense 


SECT.    l]  JOHNSON    V.    JORDAN  511 

it  is  not  an  apparent  and  contiimous  easement;  or  rather,  may  pass  — 
because,  being  a  formecl  road,  it  is  eonsidered  by  the  authorities,  in 
cases  like  tliis,  to  be  a  continuous  and  apparent  easement  —  by  im- 
plied grant  without  any  large  general  words,  or  indeed  without  any 
general  words  at  all. 

Here  I  have  a  case  in  which  these  two  gardens,  although  they  are 
not  absolutely  inaccessible,  are  inaccessible  except  through  a  part  of 
the  house,  unless  they  are  to  be  reached  by  the  gates  at  the  bottom 
of  the  gardens  communicating  with  this  formed  back-way.  That  it 
was  intended,  looking  at  all  the  facts,  that  the  persons  to  whom 
"  Westbourne  "  and  "  Cottisbrook  "  were  conveyed  should  have  the 
use  of  those  two  gates  and  of  this  back-Avay,  is,  to  my  mind,  beyond 
all  doubt.  Then,  although  I  agree  that  it  is  not  for  all  purposes  a 
way  of  necessity,  do  I  want  any  express  grant?  It  seems  to  me 
to  be  clear  on  the  authorities  that  an  express  grant  is  not  wanted  in 
such  a  case  as  this. 

Therefore,  I  hold  that  the  right  to  use  this  back-way  in  the  same 
mode  as  it  was  usable  by  the  occupiers  of  "  Cottisbrook  "  and  "  West- 
bourne  "  at  the  time  of  the  grant  of  these  properties  did  pass  by 
implied  grant,  and  accordingly  this  case  must  be  decided  on  that 
footing.  The  plaintiff,  the  present  owner  of  "  Normanhurst,"  seeks 
a  declaration  that  the  de^ndant  is  not  entitled  to  have  a  right  of 
way.  I  cannot  make  that,  declaration;  on  the  contrary,  I  make  the 
declaration  that  the  defendant  is  entitled  to  the  right  of  way  as  I 
have  described  it,  and  the  plaintiff  must  pay  the  costs  of  the  action.^ 


JOHNSON  V.  JORDAN 
2  Mot.  (Mass.)  234.     1841. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  subverting 
his  soil,  &c.    The  parties  agreed  the  following  facts :  — 

The  plaintiff  and  defendant,  at  the  time  of  the  alleged  trespass, 
severally  owned  in  fee  a  messuage  and  land,  adjoining  each  to  the 

1  As  to  what  easements  are  continuous  anci  apparent,  see  Marshall  Ice 
Co.  V.  LaPlanl,  136  Iowa  621;  Duvall  v.  Ridout,  124  Md.  193;  Gortun-Pcw  Co. 
V.  Tolman,  210  Mass.  402;  Bonclli  Bros.  v.  Blakcmorc,  66  Miss.  136;  Fetters 
V.  Humphrey.'^,  19  N.  J.  Eq.  471;  Kelly  v.  Dunning,  43  N.  J.  Eq.  62;  Toothe 
V.  Bryce,  50  N.  J.  Eq.  589;  Larsen  v.  Peterson,  53  N.  J.  Eq.  88,  post.  p.  521; 
Michelet  v.  Cole,  20  N.  M.  357;  Butterworth  v.  Crawford,  46  N.  Y.  349; 
Parsons  v.  John.^on,  68  N.  Y.  62;  Paine  v.  Chandler,  134  N.  Y.  385;  Baker 
V.  Rice,  56  Ohio  St.  462;  Kieffer  v.  Imhoff,  26  Pa.  438;  Liquid  Carbonic  Co. 
V.  Wallace,  219  Pa.  457;  Prov.  Tool  Co.  v.  Corliss  Engine  Co.,  9  R.  I.  564; 
Hoivel!  V.  Estes,  71  Tex.  690;  Hammond  v.  Ryman,  120  Va.  131;  Miller  v. 
Hkaggs,  79  W.  Va.  645;  rhoma.'i  v.  Owen,  20  Q.  B.  D.  225;  Schwann  v.  Cot- 
ton, [1916]  2  Ch.  459;  Hansjord  v.  Jago,  [1921]  1  Ch.  322.  • 

Compare  German  Savings  Soc.  v.  Gordon,  54  Oreg.  147;  Hoffman  v. 
Shoemaker,  G9  W.  Va.  233;'  Westwood  v.  Hey  wood,  [1921]  2  Cli.  130;  65 
U.  P.  L.  Rev.  77-80. 


512  JOHNSON    V.   JORDAN  [CHAP.   VIII 

other,  and  fronting  on  Temple  Street  in  Boston.  In  1804,  both  said 
messuages  and  lands  were  owned  by  William  Breed,  who  occupied  one 
of  them  himself,  and  laid  an  artificial  drain  or  conduit  through  the 
same  into  Ridgway's  Lane;  which  drain  was  used  by  said  Breed,  and 
also,  by  his  permission,  by  the  tenants  to  whom  he  leased  the  other 
messuage,  for  the  purpose  of  leading  off  waste  Avater  from  the  build- 
ings on  his  said  lands,  into  a  common  sewer  of  the  city,  situated  in 
said  lane.  Said  Breed  died  seised  of  said  messuages,  &c.,  in  1817, 
having  devised  the  use  thereof  to  his  wife  for  life,  and  the  remainder 
to  Peter  O.  Thacher  in  fee.  After  said  Breed's  decease,  his  widow 
took  possession  of  said  messuages,  &c.,  and  held  the  same,  occupying 
one  of  them,  and  leasing  the  other,  until  her  death,  April  10th,  1825, 
when  said  Thacher  took  possession  thereof,  and  continued  seised  until 
the  13th  of  May,  1825,  on  which  day  he  divided  the  same  into 
several  lots;  the  messuage  of  the  defendant,  in  which  a  portion  of 
the  drain  aforesaid  was  situated,  being  one,  and  the  messuage  of 
the  plaintiff,  in  which  another  portion  of  said  drain  was  situated,  be- 
ing the  other;  and  on  said  day  sold  each  of  said  lots  at  public  auction. 
The  messuage  of  the  defendant  was  purchased,  at  said  sale,  by  Enoch 
Kendall,  and  the  messuage  of  the  plaintiff  by  John  P.  Thorndike, 
as  appears  by  said  Thacher's  deeds  conveying  the  same,  which  are 
to  be  taken  as  part  of  this  case.  In  November,  1825,  said  Thorn- 
dike  conveyed  his  messuage  to  the  plaintiff,  and  in  July,  1826,  said 
Kendall's  executor  conveyed  his  said  messuage  to  the  defendant. 

After  the  said  conveyances  by  Thacher,  the  waste  water  from  the 
defendant's  messuage  ran  in  said  drain  through  the  plaintiff's  land, 
into  the  common  sewer,  until  May  1st,  1835.  On  that  day,  the 
plaintiff  intentionally  stopped  up  that  part  of  the  drain  leading  from 
the  defendant's  messuage,  which  was  on  the  plaintiff's  land;  and  in 
June  following,  as  alleged  in  the  plaintiff's  declaration,  the  defend- 
ant entered  on  the  plaintiff's  land  and  opened  the  drain  and  re- 
moved the  obstruction,  doing  no  damage  except  such  as  was  necessary 
to  accomplish  said  act,  and  then  closed  the  drain  and  restored  the 
soil  to  its  former  condition. 

The  parties  also  agreed,  that  any  further  evidence,  legally  admis- 
sible, might  be  introduced  by  either  party,  and  that  the  jury  should 
find,  under  the  direction  of  the  court,  whether  the  defendant  was 
or  was  not  guilty,  and  if  guilty,  assess  damages;  and  that  either 
party  might  except  to  the  ruling  of  the  judge  before  whom  the  case 
should  be  tried,  upon  the  foregoing  facts  agreed,  and  upon  the  further 
evidence  that  should  be  introduced. 

The  deed  from  Thacher  to  Kendall  was  a  lot  of  land,  without  men- 
tion of  the  drain,  or  of  privileges  and  appurtenances.  It  was  stated 
in  said  deed  that  Thorndike  had  the  right  to  have  a  gutter  on  the 
side  of  tKe  stable  adjoining  the  lot  conveyed  to  Kendall;  and  the 
deed  was  on  condition  that  Kendall  and  his  assigns  should  never  open 
any  windows  or  light  on  the  side  of  any  building  that  might  be 


SECT.    l]  JOHNSON    V.   JORDAN  513 

erected  on  the  premises  next  to  the  mansion  house  sold  to  Thorndike. 

At  the  trial  before  Wilde,  J.,  the  foregoing  statement  of  facts,  with 
the  papers  therein  referred  to,  were  submitted  to  the  court  and  jury. 
The  defendant  was  also  permitted  to  introduce  evidence  to  prove 
that  at  the  time  of  the  aforesaid  deeds  of  conveyance,  made  by 
Thacher,  no  drain  could  be  made,  with  reasonable  labor  and  ex- 
pense, to  carry  off  the  waste  water  from  the  sink  in  the  defendant's 
messuage,  in  any  other  direction  than  through  said  land  of  the 
plaintiff,  and  therefore  that  said  drain  was  a  drain  of  necessity. 

The  plaintiff  was  then  permitted  to  introduce  evidence  to  prove, 
that  at  the  time  aforesaid,  and  ever  since,  a  drain  could  conveniently 
have  been  made,  with  reasonable  labor  and  expense,  from  said  sink, 
without  going  through  the  plaintiff's  land  as  aforesaid. 

The  judge  instructed  the  jury,  that  upon  the  facts  agreed,  if  they 
were  satisfied,  from  the  other  evidence  introduced  by  the  parties, 
that  with  reasonable  labor  and  expense,  a  drain  could  be  conveniently 
made,  without  going  through  the  plaintiff's  land,  they  should  return 
a  verdict  for  the  plaintiff.  To  this  instruction  the  defendant 
excepted. 

A  verdict  was  returned  for  the  plaintiff.  Judgment  to  be  rendered 
thereon,  if  the  instruction  of  the  judge  was  correct;  otherwise,  the 
verdict  to  be  set  aside,  and  a  new  trial  granted. 

This  case  was  argued  at  March  Term,  1840. 

Shaw,  C.  J.  In  an  action  of  trespass  quare  clausum  fregit,  the 
defendant  justifies  under  a  claim  of  right  to  enter,  and  open  and 
cleanse  a  drain,  running  from  his  own  house  into  and  through  the 
defendant's  premises,  to  a  sewer  in  Ridgway's  Lane.  If  he  has  such 
a  right,  it  is  a  good  justification ;  it  being  admitted  that  he  entered 
for  that  purpose,  and  did  no  damage  beyond  what  was  necessary  to 
accomplish  it.  But  the  plaintiff  contends  that  the  defendant  had  no 
right  to  continue  the  drain  through  his  premises;  and  this  is  the  ques- 
tion for  the  consideration  of  the  court. 

It  is  very  clear  that  whilst  both  estates  were  held  by  the  same 
owner,  he  had  a  right  to  carry  his  drain  as  he  pleased,  through  any 
part  of  his  own  grounds;  and  so  long  as  both  tenements  were  owned 
and  occupied  by  the  same  person,  no  easement  was  created,  or  began 
to  be  created,  in  favor  of  one,  and  operating  as  a  service  or  burden 
upon  the  other.  So  long,  therefore,  as  such  unity  of  title  and  of 
possession  subsists,  no  right  of  easement  is  annexed  to  one  tenement 
or  charged  on  another;  and  it  is  quite  iinnmterial  how  long  tlic  di'aiii 
has  subsisted  during  such  ownership. 

If  such  an  owner  will  convey  one  of  the  tenements  and  retain  the 
other,  he  may  grant  the  right  of  drain,  or  not,  to  pass  with  the  estate 
conveyed,  or  may  reserve  sucli  a  riglit  over  the  estate  conveyed,  for 
the  benefit  of  the  one  retained,  as  "he  pleases.  It  is  a  ntatter  of 
contract,  and  must  depend  entirely  upon  the  construction  of  the  con- 
yeyance.    Supposing  this  to  be  clear,  the  question  recurs.  What  con- 


514  JOHNSON    V.    JORDAN  [CHAP.   VIII 

struction  will  tlio  law  put  upon  a  conveyance,  where  the  intention 
of  the  parties  in  this  respect  is  not  expressed  in  terms? 

In  the  first  place,  it  is  proper  to  distinguish  an  artificial  gutter  of 
this  description,  made  for  the  purpose  of  draining,  from  a  natural 
watercourse,  the  rights  of  parties  to  which  depend  upon  a  different 
principle.  Every  person,  through  whose  land  a  natural  watercourse 
runs,  has  a  right,  publici  juris,  to  the  benefit  of  it,  as  it  passes 
through  his  land,  to  all  the  irseful  purposes  to  which  it  may  be 
applied;  and  no  proprietor  of  land,  on  the  same  watercourse,  either 
above  or  below,  has  a  right  unreasonably  to  divert  it  from  flowing 
into  his  premises,  or  obstruct  it  in  passing  from  them,  or  to  corrupt 
or  destroy  it.  It  is  inseparably  annexed  to  the  soil,  and  passes  with 
it,  not  as  an  easement,  nor  as  an  appurtenance,  but  as  parcel.  Use 
does  not  create  it ;  and  disuse  cannot  destroy  or  suspend  it.  Unity 
of  possession  and  title  in  such  land  with  the  lands  above  it  or  below 
it  does  not  extinguish  or  suspend  it. 

This  case  is  also  to  be  entirely  distinguished  from  one  wherein  the 
declivity  of  the  laud  and  the  relative  position  of  the  tenements  are 
such,  that  a  drain  cannot  be  formed  for  the  benefit  of  one,  without 
passing  through  the  other.  Such  a  case  might  stand  upon  a  different 
ground.  But  in  the  present  case,  it  was  found  by'  the  jury,  that  a 
drain  could  be  conveniently  made,  with  reasonable  labor  and  expense, 
from  the  defendant's  house,  without  going  through  the  plaintiff's 
land. 

There  are  some  general  and  well-settled  rules  of  construction  of 
conveyances,  which  tend  in  some  degree  to  settle  the  question.  The 
language  of  the  deed  is  the  language  of  the  grantor;  he  selects  the 
terms,  and  it  being  supposed  that  he  will  insert  all  that  has  been 
agreed  upon  beneficial  to  himself,  and  will  be  less  careful  to  state 
fully  all  which  is  beneficial  to  the  grantee,  the  language  is  to  be  con- 
strued most  strongly  against  the  grantor. 

Another  well-settled  rule  of  construction  is,  that  a  grant  of  any 
principal  thing  shall  be  taken  to  carry  with  it  all  which  is  necessary 
to  the  beneficial  enjoyment  of  the  thing  granted,  and  which  it  is  in 
the  power  of  the  grantor  to  convey.  When  therefore  a  party  has 
erected  a  mill  on  his  own  land,  and  cut  an  artificial  canal  for  a  race- 
way, through  his  own  land,  and  then  sells  the  mill,  without  the  land 
through  which  such  artificial  raceway  passes,  the  right  to  use  such 
raceway  through  the  grantor's  land  shall  pass  as  a  privilege  annexed 
de  facto  to  the  mill,  and  necessary  to  its  beneficial  use.  New  Ijjsivich 
Factory  v.  Batchelder,  3  IST.  H.  190. 

Under  these  rules,  it  might  perhaps  be  held,  that  if  a  man,  owning 
two  tenements,  has  built  a  house  on  one,  and  annexed  thereto  a  drain, 
passing  through  the  other,  if  he  sell  and  convey  the  house  with  the 
appurtenances,  such  a  drain  may  be  construed  to  be  de  facto  annexed 
as  an  appurtenance,  and  pass  with  it ;  and  because  such  construction 
would  be  most  beneficial  to  the  grantee :  Whereas,  if  he  were  to  sell 


SECT.   l]  JOHNSON    V.    JORDAN  515 

and  convey  the  lower  tenement,  still  owning  the  npper,  it  might 
reasonably  be  considered  that  as  the  right  of  drainage  was  not  re- 
served in  terms,  when  it  natnrally  wonld  be,  if  so  intended,  it  could 
not  be  claimed  by  the  grantor.  The  grantee  of  the  lower  tenement, 
taking  the  language  of  the  deed  most  strongly  in  his  own  favor  and 
against  the  grantor,  might  reasonably  claim  to  hold  his  granted 
estate  free  of  the  incumbrance.  Leonard  v.  ^Yhiie,  7  Mass.  8;  Grant 
V.  Chase,  17  Mass.  443. 

But  neither  of  these  rules  will  apply  to  the  present  case,  because 
it  appears  by  the  deeds  themselves,  as  well  as  by  the  other  evidence 
in  the  case,  that  the  two  conveyances  from  the  owner  of  the  whole, 
under  which  the  parties  claim,  were  simultaneous.  It  is  therefore 
much  more  like  a  partition  between  tenants  in  common,  where  each 
party  takes  his  estate  with  the  rights,  privileges,  and  incidents  in- 
herently attached  to  it,  than  like  the  case  of  grantor  and  grantee, 
where  the  grantor  conveys  a  part  of  his  land,  by  metes  and  bounds, 
and  retains  another  part  to  his  own  use,  and  where  the  question  is, 
upon  the  terms  of  the  deed,  whether  an  easement  for  drainage  has 
been  granted  with  the  estate  conveyed  over  that  retained,  or  re- 
served over  that  conveyed,  for  the  benefit  of  that  retained. 

In  the  present  case,  the  estates  were  both  owned  and  occupied  by 
Mr.  Thacher  until  the  sale  made  to  Mr.  Thorndike  and  Mr.  Kendall, 
under  whom  the  plaintiff  and  defendant  respectively  derive  title. 
Both  of  these  deeds  bear  date  the  same  day.  Each  refers  to  the 
estate  described,  as  this  day  sold  to  the  other.  Both  deeds  must  be 
taken  and  construed  together.  In  the  deed  to  Thorndike,  an  ease- 
ment for  a  gutter  was  created;  and  in  the  deed  to  Kendall,  the  same 
is  charged  as  a  perpetual  servitude,  in  favor  of  Thorndike  and  his 
heirs.  The  conveyance  to  Kendall  was  made  upon  an  onerous  con- 
dition never  to  open  windows  in  any  building  to  be  erected  on  the 
premises,  on  the  side  next  to  the  dwelling-house  conveyed  to  Thorn- 
dike; a  condition  manifestly  designed  for  the  benefit  of  the  estate 
conveyed  to  the  latter;  and  in  the  deed  to  Thorndike,  this  restriction 
upon  the  estate  conveyed  to  Kendall  is  recited;  intended,  no  doubt,  to 
show  that  the  estate  to  Thorndike  and  his  assigns,  was  thereby  en- 
hanced in  value.  The  well-known  maxim  of  construction,  and  a  very 
sound  one,  is  Expressio  unius  exelusio  est  aJteriiis.  Here  was  a 
division  of  these  two  tenements  intimately  connected  with  each  other, 
with  detailed  provisions  in  r('sj)(>ct  of  the  rights  Avliich  each  should 
have  in  the  other,  and  the  duties  to  which  each  should  be  subject  in 
favor  of  the  other.  If  it  was  intended  that  one  should  have  a  per- 
petual right  of  drainage  through  the  other,  with  a  right  of  entry 
at  all  times  to  repair  and  relay  such  drain,  especially  where  it  is 
found  not  to  be  necessary  to  the  enjoyment  of  the  estate  granted,  it 
seems  reasonable  to  suppose  that  it  would  have  been  expressed.  As 
no  such  right  was  expressed,  we  are  of  opinion  that  it  was  not  in- 
tended to  be  granted;  and  as  it  Avas  not  necessary  to  the  enjoyment 


516  ANDERSON    V.    BLOOMHEART  [CHAP.   VIII 

of  the  estate,  and  had  not  been  de  facto  annexed,  so  as  to  pass  by 
general  words  as  parcel  of  the  estate,  it  did  not  pass  to  the  defend- 
ant's grantor  by'  force  of  the  deed.  As  about  ten  years  only  elapsed 
after  these  conveyances,  and  the  consequent  division  of  the  two 
tenements  between  different  proprietors,  before  the  grievance  com- 
plained of,  it  is  very  clear  that  the  defendant  derived  no  right  to 
the  easement  by  actual  use  and  enjoyment.  Such  a  right  in  the  estate 
of  another  can  be  created  by  actual  use,  only  when  such  use  has  been 
adverse,  peaceable,  and  uninterrupted,  and  continued  for  a  period  of 
twenty  years.  Judgment  on  the  verdict  for  the  plaintiff } 


ANDEKSON  V.  BLOOMHEART  ET  AL. 
101  Kan.  691.     1917. 

Appeal  from  Lincoln  district  court;  Dallas  Grover,  judge. 
Opinion  filed  November  10,  1917.     Affirmed. 

The  opinion  of  the  court  was  delivered  by 

Mason,  J. :  The  defendants  are  the  owners  of  two  adjoining  city 
lots,  one  vacant  and  the  other  occupied  by  a  two-story  building.  They 
rented  the  building  (excepting  the  second  story)  to  the  plaintiff 
by  a  five-year  lease  containing  a  covenant  for  quiet,  enjoyment.  A 
year  later  they  were  about  to  erect  upon  the  vacant  lot  a  structure 
which  would  cut  off  the  light  and  air  from  the  basement  windows 
of  the  building  occupied  by  the  plaintiff.  He  brought  an  action 
seeking  to  enjoin  such  obstruction  on  the  ground  that  it  would  render 
the  basement  practically  useless  to  him.  A  demurrer  to  his  peti- 
tion was  sustained,  and  he  appeals. 

By  the  English  common  law  a  conveyance  of  a  part  of  a  tract 
of  land  owned  by  the  grantor  carried  with  it  by  implication  the 
right  to  the  free  passage  of  air  and  light  to  the  portion  conveyed 
over  the  remainder,  in  the  absence  of  any  express  reference  to  the 

1  On  simultaneous  conveyances  by  grant  for  value,  see  Warren  v.  Blake, 
54  Me.  276;  Mitchell  v.  Seipel,  53  Md.  251 ;  Collier  v.  Pierce,  7  Gray  (Mass.) 
18;  Randall  v.  McLaughlin,  10  All.  (Mass.)  366;  Briss  v.  Dyer,  125  Mass.  287; 
Larsen  v.  Peterson,  53  N.  J.  Eq.  88,  post,  p.  521 ;  Rogers  v.  Sinsheimer,  50 
N.  Y.  646;  Whyte  v.  Builders'  League,  164  N.  Y.  429;  Swansborough  v.  Coven- 
try, 3  Bing.  305;  Allen  v.  Taylor,  16  Ch.  D.  355;  Hansford  v.Jago,  [1921] 
1  Ch.  322. 

By  devise  or  by  partition,  see  Jones  v.  Sanders,  138  Cal.  405;  Cheda  v. 
Bodkin,  173  Cal.  7;  Conover  v.  Cade,  184  Ind.  604;  O'Daniel  v.  Baxter,  112 
Ky.  334;  Mclntire  v.  Lauckner,  108  Me.  443;  Clark  v.  Debauch.  67  Md. 
430;  Gorton-Pew  Co.  v.  Tolman,  210  Mass.  402;  Palmer  v.  Palmer,  150  N.  Y. 
139;  Goodell  v.  Godfrey,  53  Vt.  219;  Burwell  v.  Hobson,  12  Grat.  (Va.)  322; 
Muse  v.  Cash,  114  Va.  90;  Phillips  v.  Low,  [18921  1  Ch.  47;  Schunnn  v. 
Cotton,  [19161  2  Ch.  459.  See  Baker  v.  Rice,  56  Ohio  St.  463;  Rightsell  v. 
Hale,  90  Tenn.  556. 


SECT.    l]  ANDERSON    V.    BLOOMHEART  517 

subject.  This  rule  at  one  time  obtained  some  recognition  in  this 
country,  but  is  now  generally  repudiated,  although  it  survives  in  a 
modified  form  in  some  states.  (1  C.  J.  1227,  1228;  1  R.  C.  L.  398; 
16  R.  C.  L.  716.)  It  has  long  been  settled  that  the  doctrine  of 
"  ancient  lights  "  has  no  place  in  the  law  of  Kansas.  (Lapere  v. 
Lackey,  23  Kan.  534.)  "We  accept  as  consistent  both  with  reason 
and  authority  these  expressions  of  American  courts  with  respect  to 
the  matter  of  implied  covenants: 

"  The  use  and  enjoyment  of  the  adjoining  lands  are  certainly  no 
more  subordinate  to  those  of  the  house  where  both  are  owned  by  one 
man,  than  where  the  owners  are  different.  The  reasons,  upon  Avhich 
it  has  been  held  that  no  grant  of  a  right  to  air  and  light  can  be 
implied  from  any  length  of  continuous  enjoyment,  are  equally  strong 
against  implying  a  grant  of  such  a  right  from  the  mere  conveyance 
of  a  house  with  windows  overlooking  the  land  of  the  grantor.  To 
imply  the  grant  of  such  a  right  in  either  case,  without  express  words, 
Avould  greatly  embarrass  the  improvement  of  estates,  and,  by  reason 
of  the  very  indefinite  character  of  the  right  asserted,  promote  litiga- 
tion. The  simplest  rule,  and  that  best  suited  to  a  country  like  ours, 
in  which  changes  are  continually  taking  place  in  the  ow^nership 
and  the  use  of  the  lands,  is  that  no  right  of  this  character  can  be 
acquired  without  express  grant  of  an  interest  in,  or  covenant  re- 
lating to,  the  lands  over  which  the  right  is  claimed."  (Keats  v. 
Hugo,  115  Mass.  204,  215.) 

"  It  seems  to  us  that  this  doctrine  of  easements  in  light  and  air, 
founded  upon  sheer  necessity  and  convenience,  like  the  kindred 
doctrine  of  '  ancient  windows,'  or  prescriptive  right  to  light  and 
air  by  long  user,  is  wholly  unsuited  to  our  condition,  and  is  not  in 
accordance  with  the  common  understanding  of  the  community.  Both 
doctrines  are  based  upon  similar  reasons  and  considerations,  and 
both  should  stand  or  fall  together.  They  are  unsuited  to  a  country 
like  ours,  where  real  estate  is  constantly  and  rapidly  appreciating,  and 
being  subjected  to  new  and  more  costly  forms  of  improvement,  and 
where  it  so  frequently  changes  owners  as  almost  to  become  a  mat- 
ter of  merchandise.  In  cases  of  cheap  and  temporary  buildings, 
tlie  application  of  the  doctrine  would  be  attended  with  great  un- 
certainty, and  be  a  fruitful  source  of  litigation.  It  would,  moi'eover, 
in  many  cases,  be  a  perpetual  incumbrance  upon  the  servient  estate, 
and  operate  as  a  veto  upon  improvements  in  our  towns  and  cities. 
It  will  be  safer,  we  think,  and  more  likely  to  subserve  the  ends  of 
justice  and  public  good,  to  leave  the  parties,  on  questions  of  light 
and  air,  to  the  boundary  lines  they  name,  and  the  terms  they  ex- 
press in  their  deeds  and  contracts."  (Mullen  v.  Stricl'ler.  19  Oliio 
St.  135,  143.)' 

1  That  there  can  be  no  implied  grant  of  an  easement  of  light  and  air  on 
a  conveyance  of  the  fee  in  the  United  States,  see  Kctmcdi/  v.  Burnap, 
120  Cal.  488;  Ray  v.  Sweeney,  14  Bush.  (Ky).  1;  Keipcr  v.  Khin,  51  Ind. 


518  ANDERSON    V.    BLOOMHEART  [CHAP.    VIII 

The  precise  question  here  presented,  however,  is  whether  an 
easement  for  light  and  air  may  be  implied  in  a  lease  of  one  tract 
by  the  owner  of  that  adjoining  it.  In  a  recent  note  it  is  said  that 
the  decisions  slightly  predominate  in  favor  of  an  affirmative  answer. 
(13  L.  R.  A.,  n.  s.,  333.)  In  the  case  there  annotated  {Darnell  v. 
Columhiis  Show-Case  Co.,  129  Ga.  62)  that  view  of  the  question 
was  adopted  by  an  extension  of  the  rule,  which  had  already  been 
confirmed  by  statute,  that  — 

"  When  one  sells  a  house,  the  light  necessary  for  the  reasonable 
enjoyment  whereof  is  derived  from  and  across  adjoining  land  then 
belonging  to  the  same  owner,  the  easement  of  light  and  air  over 
such  vacant  lot  passes  as  an  incident  to  the  house  sold,  because 
necessary  to  the  enjoyment  thereof."  (p.  336.) 

In  the  opinion  it  was  said  that  the  principle  was  equally  applic- 
able to  a  lease,  and  that  the  reason  for  it  was  more  cogent  in  that 
case  because  of  the  tenant's  restricted  control  of  the  premises.  This 
decision  is  the  less  persuasive  here  because  made  in  a  jurisdiction 
where  the  English  rather  than  the  American  rule  is  followed  with 
respect  to  the  eifect  of  conveyances  by  adjoining  owners.  This  is 
true  also  of  the  first  case  cited  in  the  note.  ( Ware  v.  Chew,  43  N.  J. 
Eq.  493.)  The  second  case  cited  (Case  v.  Minot,  158  Mass.  577) 
affirmed  the  right  of  the  tenant  of  a  room  in  an  office  building  to 
damages  by  reason  of  the  obstruction  of  a  light-and-air  shaft  or 
well  by  the  building  of  a  chimney  by  another  tenant  —  a  situation 
not  entirely  analogous  to  that  here  presented.  The  third  case 
(Doyle  et  al.  v.  Lord  et  al.,  64  N.  Y.  432)  was  qualified  by  this 
statement  : 

"If  the  yard  [in  which  the  ownier  was  about  to  erect  a  structure 
which  would  cut  off  the  light  and  air  from  premises  occupied  by  its 
tenants]  had  not  been  part  of  the  lot  upon  which  the  building  was 
standing  and  if  it  had  not  been  appropriated  to  use  with  the  build- 
ing so  as  to  pass  as  appurtenant  thereto,  so  far  as  to  give  easements 
therein  to  the  tenants  of  the  building,  the  plaintiffs  could  not  have 
complained  of  the  acts  of  the  defendants."     (p.  439.) 

In  the  only  other  American  case  cited  in  the  note  referred  to  on 
this  side  of  the  question  (Eazlctt  v.  Powell,  30  Pa.  293)  the  part  of 
the  opinion  bearing  upon  the  matter  was  a  rather  casual  dictum, 
apparently  made  upon  the  strength  of  two  decisions  arising  out  of 
sales,  not  leases.  It  is  clear,  therefore,  that  there  is  little  in  the 
American  decisions  tending  to  induce  a  court  which  holds  that  no 
covenant  as  to  light  and  air  is  to  be  implied  in  a  deed  to  take  a  differ- 


316;  Keats  v.  Hugo,  115  Mass.  204;   Mullen  v.  Strieker,   19  Ohio  St.   135; 
Bailey  v.  Gray,  53  S.  C.  503. 

Contra,  Janes  v.  Jenkins,  34  Md.  1 ;  Geer  v.  Van  Meter,  54  N.  J.  Eq.  270. 
Compare  Rennyson's  Appeal,  94  Pa.  147,  153,  where  it  is  said  that  an  ease- 
ment of  light  may  be  raised  by  actual  necessity;  and  see  also  Robinson  v. 
Clapp,  65  Conn.  365.  385;  Georgia,  Code  (1914),  §  3618. 


SECT,    l]  RODGERS    V.    PARKER  519 

ent  view  ia  the  case  of  a  lease;  although  it  is  also  true  that  the 
specific  decisions  of  a  contrary  tendency  are  not  numerous.  While 
it  is  of  course  possible  to  make  a  distinction  based  upon  the  difference 
between  a  deed  and  a  lease,  we  think  the  reasons  for  repudiating 
the  doctrine  of  ancient  lights  and  the  rule  by  which  a  covenant  as 
to  light  and  air  is  implied  in  a  deed  apply  with  sufficient  force  to 
the  present  situation  to  require  us  to  hold  that  no  right  Avith  respect 
to  light  and  air  was  created  by  implication  under  the  facts  alleged 
in  the  petition,  and  the  demurrer  was  properly  sustained. 
The  judgment  is  affirmed.^ 


EODGEES  V.  PARKER 
9  Gray  (Mass.)  445.     1857. 

Action  of  tokt  for  breaking  and  entering  the  plaintiff's  close 
in  Quincy,  and  breaking  down  the  plaintiff's  fence.  The  parties 
submitted  the  question  whether  the  action  could  he  maintained  to 
the  decision  of  the  court  upon  the  following  facts : 

On  the  24th  of  April  1855  William  P.  Apthorp  offered  for  sale 
by  public  auction  house  lots  on  the  Apthorp  estate  in  Quincy. 
The  auctioneer  exhibited  a  plan  at  the  sale,  (the  material  part  of 
which   is   printed   in   the   margin,*)    and  distributed  copies   thereof 


Hancock         '.      Avenue. 


among  the  persons  who  attended.  Lot  7  was  bid  off  by  the  defend- 
ant; lot  1  by  the  plaintiff;  and  lots  2,  3  and  8  by  other  persons. 
Deeds  were  soon  afterwards  made  by  Apthorp  to  the  purchasers, 
and  recorded,  describing  each  lot  by  its  number  on  this  plan,  (de- 
clared therein  to  be  "  recorded  with  the  deed  of  lot  numbered  one  on 
said  plan,")  and  as  bounded  "on  a  passage  called  llaneoek  Avenue 
on  said  plan."  That  avenue  was  staked  out  at  tlie  time  of  the 
auction. 

After  this  sale,  and  before  thes(^  deeds  wcr(>  made,  A]itliorp  sold 

1  The  plaintiff  petitioned  for  a  rehearing  on  the  ground  the  court  had 
overlooked  the  defendant*'  covenant  for  quiet  enjoyment,  but  a  rehearing 
was  denied.    The  opinion  on  this  petition  is  omitted. 


520  RODGERS    V.    PARKER  [CHAP.   VIII 

and  conveyed  lots  4,  5  and  6,  together  with  that  part  of  Hancock 
Avenue  lying  west  of  a  straight  line  drawn  from  the  southeast 
corner  of  lot  6  to  the  northeast  corner  of  lot  4,  to  the  plaintiff,  who 
afterwards  erected  a  fence  across  the  avenue  at  the  dotted  line  on  the 
plan.  The  defendant,  some  days  after  requesting  the  plaintiff  to 
remove  the  fence,  removed  it  himself,  without  injuring  the  materials, 
and  left  them  by  the  side  of  the  avenue. 

Dewey,  J.  As  to  the  right- of  the  defendant  to  have  an  open 
avenue  or  way,  coextensive  with  the  extent  of  the  lot  purchased 
by  him,  there  can  be  no  question.  The  sale  to  the  defendant 
was  made  by  one  having  the  entire  estate,  and  was  a  sale  by  public 
auction  of  house  lots  laid  out  and  numbered  on  a  plan  then  ex- 
hibited; said  lots  being  bounded  by  Hancock  Avenue,  which  was 
also  delineated  on  the  plan,  which  plan  was  afterwards  recorded 
in  the  office  of  registry  of  deeds.  In  this  state  of  the  facts,  the 
grantor  and  those  who  succeed  to  his  title  to  the  remaining  land 
are  estopped  from  denying  that  there  is  such  a  way.  Treating  the 
right  of  the  defendant  to  be  of  the  more  restricted  character,  of  a 
way  coextensive  with  his  house  lot,  this  right  was  violated  in  the 
erection  of  the  fence  in  the  line  in  which  it  was  placed,  the  same 
not  being  at  right  angles  with  the  avenue. 

But  the  farther  ground  of  defence  that  the  defendant,  as  purchaser 
of  lot  No.  7,  may  require  that  the  entire  avenue  as  staked  out  at 
the  time  of  the  auction  sale  and  delineated  on  the  plan  shall  be  kept 
open  as  an  avenue,  having  been  also  urged  at  the  argument,  we  have 
also  considered  that  question.  This  subject  has  recently  been  before 
us  for  our  consideration  in  the  case  of  Thomas  v.  Poole,  7  Gray,  83, 
under  facts  somewhat  similar  —  a  way  staked  out  and  to  be  opened 
by  the  grantor,  the  lot  sold  described  as  bounded  in  such  way,  but 
having  more  distinctly  stated  by  words  in  the  recital  the  extent  of  the 
new  way.  In  the  present  case,  the  extent  of  the  avenue  is  clearly 
marked  upon  the  plan,  and  is  as  readily  ascertained  thereby  as  it 
would  have  been  by  a  recital  in  words. 

In  the  case  of  Thomas  v.  Poole,  the  court  held  that  the  way  thus 
staked  out  and  upon  a  part  of  which  the  lot  sold  was  bounded,  was 
to  be  kept  open  for  its  entire  distance  as  thus  staked  out  and  ex- 
hibited to  purchasers,  and  that  the  right  to  have  the  same  kept  open 
was  not  limited  to  the  extent  of  the  land  conveyed  to  any  particular 
purchaser  of  one  lot.  It  seems  to  us  that  the  same  principle  is 
applicable  to  the  present  case,  and  that  the  entire  avenue,  as  staked 
out  and  delineated  on  the  plan  exhibited  at  the  sale  and  afterwards 
recorded,  was  as  respects  the  plaintiff  to  be  kept  open  as  an  avenue. 
In  either  aspect  of  the  question  the  defence  is  well  maintained. 

Judgement  for  the  defendant} 

1  And  see  Highland  Realty  Co.  v.  Avondale  Land  Co.,  174  Ala.  326; 
Rogers  v.  Bollinger,  59  Ark.  12;  Danielson  v.  Sykes,  157  Cal.  686;  Pierce  v. 


SECT.  l]  LARSEN  V.    PETERSON  621 

LARSEN"  V.  PETERSON 

53  N.  J.  Eq.  88.     1894. 

Heard  on  pleadings  and  proofs. 

Pitney,  V.  C.  The  object  of  this  bill  is  to  establish  and  protect 
complainant's  right  in,  and  enjoyment  of,  an  easement. 

The  circumstances,  which  are  not  open  to  serious  dispute,  are 
peculiar.  For  some  years  prior  to  and  on  the  1st  day  of  June,  1893, 
Mrs.  Elizabeth  Mabey,  of  Montclair,  Essex  county,  Avas  the  owner  of 
a  lot  of  land  fronting  on  Elmwood  avenue,  in  that  city,  upon  which 
was  a  double  frame  dwelling,  comprising,  under  one  roof,  two  com- 
plete dwellings,  separated  only  by  an  ordinary  lath  and  plaster  par- 
tition, without  any  openings.  Some  years  before  that  date  she  had 
procured  a  well  to  be  drilled  in  the  earth  and  underlying  water- 
bearing rock  in  the  rear  of  this  building,  and  had  laid  therefrom  two 
independent  waterpipes  placed  in  the  earth,  leading  to  the  dwelling, 
one  into  the  sink  of  eacli  kitchen.  Each  dwelling  was  supplied  with 
an  ordinary  handpump,  and  in  this  manner,  and  in  no  other,  each  of 
the  separate  dwellings  was  supplied  with  water.  There  was  nothing 
visible  on  the  ground  in  the  rear  of  the  house  to  indicate  the  existence 
of  a  well  or  its  connection  with  the  dAvelling,  and*  there  was  no  water- 
main  in  the  street. 

This  being  the  situation,  Mrs.  Mabey,  in  the  spring  of  1893,  was 
minded  to  sell  this  property,  but  was  unwilling  to  sell  a  part  without 
the  whole.  At  the  same  time,  both  complainant  and  defendant  were 
desirous  of  purchasing  houses  for  their  individual  use,  and,  hearing 
of  this  property,  called  together  on  Mrs.  Mabey  —  that  is,  com- 
plainant and  John  Peterson,  acting  as  agent  for  his  wife  —  and 
looked  at  the  property.  They  looked  at  only  one  of  the  dwellings 
—  that  in  the  actual  occupation  of  Mrs.  Mabey,  the  other  being  in 
the  occupation  of  a  tenant  —  and  were  informed,  and  truly,  by  Mrs. 
Mabey,  that  the  two  dwellings  were  precisely  alike  in  all  respects, 
and,  indeed,  this  was  plainly  indicated  by  their  exterior  appearance. 
In  the  kitchen  of  the  part  occupied  by  Mrs.  Mabey,  both  complainant 


Roberts,  57  Conn.  31;  Smith  v.  Yuung,  160  111.  163;  Cleaver  v.  Mahanke,  120 
Iowa  77;  Riley  v.  Stein,  50  Kan.  591;  Rowan  v.  Portland,  8  B.  Men.  (Ky.) 
232;  Iseringhamen  v.  Larcade,  147  La.  515;  Yotmg  v.  Braman,  105  Me.  494; 
Adams  v.  Produce  Exchange,  115  Atl.  (Md.)  106;  Fox  v.  Union  Sugar  Re-  ■ 
finery,  109  ]Ma,-^s.  292;  Lindsay  v.  Jones,  21  Nev.  72;  White  v.  Tidewater  Oil 
Co..  50  N.  J.  Eq.  1;  Weeks  v.  Neiv  York  Ru.  Co.,  207  N.  Y.  190;  Collins  v. 
Asheville  Land  Co.,  128  N.  C.  563;  Chapin  v.  Brown,  15  R.  I.  579;  State  v. 
Hamilton,  109  Tenn.  276:  Wolje  v.  Bross.  72  Tox.  133;  Ci.'^h  v.  Roanoke,  119 
Va.  519;  Cook  v.  Totten.  49  W.  Va.  177;  E.^yUi/  v.  Wilkes,  L.  R.  7  Ex.  298. 
Compare  Marshall  v.  Li/vh,  2.')6  111.  .522;  Dnnnan  v.  Bates  Mfg.  Co.,  82 
Me.  438;  Hoive  v.  Alger.  4  All.  (Mas,<)  206;  Williams  v.  Bo.-^ton  Water  Power 
Co.,  134  Mass.  406;  Ralph  v.  Clifford.  224  Mass.  58;  Quicksalt  v.  Lee,  177 
Pa.  301;  Lins  v.  Seefeld,  126  Wis.  610. 


522  LARSEN    V.    PETERSON  [CHAP.   VIII 

and  Peterson  saw  and  particularly  noticed  the  pump  in  the  sink 
and  tasted  the  water  from  it,  and  were  informed  that  it  came  from 
a  drilled  well  in  the  back  yard,  and  that  both  dwellings  were  supplied 
in  the  same  way  and  from  the  one  well.  The  precise  location  of  the 
well  was  not  pointed  out,  and  was  not  known  either  to  Mrs.  Mabey 
or  to  either  of  the  parties  until  after  the  conveyances  presently  to 
be  mentioned.  Both  complainant  and  defendant  knew  that  there  was 
no  water-main  in  the  street.  •  On  that  occasion  complainant  and 
John  Peterson  agreed  together,  and  with  Mrs.  Mabey,  to  purchase 
the  property  at  a  price  named,  and  agreed  that  it  should  be  equally 
divided  between  them,  and  that  the  title  should  be  made  to  each  in 
severalty  according  to  a  dividing  line  to  be  agreed  upon  between  them 
and  actually  run  on  the  ground  by  a  surveyor  in  such  a  manner 
that  it  should  run  through  the  partition  separating  the  two  dwellings, 
and  then  divide  the  land  as  nearly  equally  as  practicable.  Peterson 
at  the  same  time  gave  $10  for  the  choice  of  the  houses,  and  then 
and  there  chose  the  house  in  which  Mrs.  Mabey  was  living;  but 
such  choice  had  no  reference  to  the  location  or  control  of  the  well, 
and  was  influenced  entirely  by  the  circumstance  that  the  house  so 
chosen  had,  owing  to  the  shape  of  the  lot,  more  light  and  air  in  its 
front  and  side  than  the  other.  The  survey  was  had  accordingly,  and 
a  description  of  the  dividing  line  given,  and  deeds  of  conveyance 
in  accordance  with  it,  dated  June  1st,  1893,  were  executed  by  Mrs. 
Mabey  on  June  5th,  and  duly  delivered  at  the  same  moment,  one  to 
complainant  and  the  other  to  Mrs.  Peterson,  the  wife  of  John.  Both 
parties  took  possession.  Subsequently  Peterson  discovered  that  the 
well  was  on  his  land,  and  then  cut  the  pipe  leading  to  complainant's 
kitchen,  who  thereupon  attempted  to  repair  it  and  was  prevented  by 
the  defendant;  whereupon  he  filed  this  bill  asking  that  his  rights  in 
the  premises  may  be  established,  and  the  defendant  enjoined  from 
preventing  him  from  renewing  the  water-pipe  connection  with  the 
well.  Upon  the  filing  of  the  bill  an  injunction  was  granted  accord- 
ingly, and  the  complainant  took  advantage  of  it  to  restore  the  con- 
nection between  his  pump  and  the  well  to  its  former  condition. 

At  the  hearing  there  was  no  contention  that  the  well  did  not  sup- 
ply water  enough  for  both  families,  or  that  complainant  had  made  an 
unreasonable  use  of  it. 

The  above  are  the  facts  as  I  have  found  them.  Peterson  does, 
indeed,  deny  that  he  was  told  on  the  occasion  in  question  that  the 
other  dwelling  had  a  pump  like  the  one  they  inspected,  or  that 
there  was  but  one  well  for  both  houses.  But  the  contrary  is  sup- 
ported not  only  by  the  evidence  of  complainant,  but  also  by  that  of 
Mrs.  Mabey  and  her  daughter,  both  disinterested  witnesses  —  or 
rather,  if  they  have  any  interest,  it  is  against  complainant,  since 
Mrs.  Mabey  gave  Mr.  Peterson  a  warranty  deed  —  who  gave  their 
evidence  in  a  way  to  command  the  belief  of  the  court.  Besides, 
Peterson  does  not  deny  that  he  saw  the  pump  and  heard  that  it  was 


SECT.    I J  LARSEN    V.    PETERSON  523 

supplied  with  water  from  a  well,  but  does  deny  that  he  was  told  that 
the  other  dwelling  was  similarly  supplied.  But  he  knew  that  both 
dwellings  were  a  part  of  one  building,  and  that  in  external  appear- 
ance they  were  precisely  alike;  that  the  other  dwelling  was  occu- 
pied ;  he  fixed  the  value  of  the  choice  between  the  two  houses  at  only 
$10,  which  was  due,  as  he  admits,  to  a  difference  in  the  size  of  the 
front  yard,  which  would  necessarily  result,  as  shown  by  the  plot, 
from  a  division  of  it  in  the  way  proposed  and  agreed  upon.  He  does 
not  contend  that  his  choice  was  due  to  any  supposed  difference  in  the 
interior  of  the  houses,  or  to  the  presence  of  water  in  one  and  its  ab- 
sence in  the  other,  or  that  he  supposed  that  each  house  had  an  in- 
dependent supply  of  water.  These  circumstances  render  it  highly 
improbable  that  he  did  not,  in  some  way,  learn  that  both  dwellings 
were  supplied  with  water  in  the  same  way  and  from  the  same  source. 
It  was,  to  say  the  least,  not  probable  that  the  proprietor  of  such  a 
lot  and  building  would  incur  the  expense  of  an  independent  water- 
supply  to  each  dwelling. 

Upon  this  case,  the  complainant,  in  his  able  brief,  makes  two 
points  which  support  each  other,  and  either  of  which,  standing  alone, 
he  contends,  entitles  him  to  relief.  First.  That  the  well  and  aque- 
duct running  therefrom  to  complainant's  house  constitute  a  change 
of  a  permanent  nature  in  the  structure  of  the  defendant's  tenement, 
made  for  the  benefit  of  complainant's  tenement  by  the  owner  of  both, 
of  which  defendant  had  actual  notice  through  her  agent  before  she 
purchased,  and  which  was  of  such  a  nature  as  to  be  discovered  on  an 
examination,  and  hence  became  an  apparent  and  continuous  ease- 
ment in  favor  of  complainant's  tenement  upon  the  defendant's  tene- 
ment. Second.  That  the  effect-  of  the  transaction  between  com- 
plainant, defendant  and  Mrs.  Mabey,  was  a  purchase  by  the  two 
jointly  from  Mrs.  Mabey,  with  an  agreement  between  the  two  that 
the  property  should  be  divided  in  the  manner  stated,  and  that  the 
arrangement  for  the  supply  of  water  for  each  house  should  rcnuiin 
as  it  was. 

It  seems  to  me  that  the  controlling  question  is,  whether  the  ar- 
rangement for  the  supply  of  water  to  coni])laiuant's  house  constituted 
what  is  known  to  jurists  as  a  "  continuous  and  apparent  "  easement, 
which  was  "  necessary  "  in  the  sense  in  which  that  word  is  used  in 
that  connection,  for  the  comfortable  use  and  occupation  of  the  com- 
plainant's premises. 

As  to  the  quality  of  its  being  "  apparent,"  the  fact  that  it  was,  in 
part,  hidden  in  the  earth,  and  so  not  physically  apparent  to  the  eye, 
is  not  conclusive.  The  part  on  complainant's  land  —  the  pump  —  was 
visible,  and  the  water  must  have  come  either  from  the  land  actually 
conveyed  to  him  or  from  that  conveyed  to  Peterson.  Independent 
of  the  actual  notice,  I  am  of  opinion  that  Mrs.  Peterson,  under  the 
peculiar  circumstances  of  this  case,  is  chargeable  with  notice  that 
there  was  such  a  pump  on  the  complainant's  tenement,  and  that  it 


524  LARSEN    V.    PETERSON  [CHAP.    VIII 

might  connect  with  the  well  or  cistern  on  the  part  that  was  conveyed 
to  her. 

It  seems  to  be  well  settled  that  the  mere  fact  that  a  drain  or  aque- 
duct, as  the  case  may  be,  is  concealed  from  casual  vision,  does  not 
prevent  it  from  being  "  apparent  "  in  the  sense  in  which  that  word 
is  used  in  that  connection.  The  aqueduct,  in  Nicholas  v.  Chamber- 
lain, 2  Cro.  121;  the  drain,  in  Pyer  v.  Carter,  1  Hurlst.  &  N.  916; 
the  aqueduct,  in  Watts  v.  Kelson,  L.  R.  6  Ch.  166;  in  Brakeley  v. 
Sharp,  1  Stock.  9  and  2  Stock.  207;  in  Seymour  v.  Lewis,  2  Beas. 
439,  and  in  Toothe  v.  Bryce,  5  Dick.  Ch.  Rep.  589,  were  all  buried 
beneath  the  surface  and  not  visible  to  the  casual  observer,  and  yet 
the  easement  in  each  case  was  upheld.  The  point  of  actual  appear- 
ance to  the  eye  was  distinctly  raised  in  Pyer  v.  Carter,  and  over- 
ruled. There,  as  here,  the  two  dwellings  were  under  one  roof,  and 
once  had  a  common  owner,  and  had  a  drain  in  common  for  the  use 
of  both,  which  was  not  visible.  Baron  Watson,  in  his  considered 
judgment,  used  this  language:  "We  think  it  was  the  defendant's 
own  fault  that  he  did  not  ascertain  what  easements  [the  drain]  the 
owner  of  the  adjoining  house  exercised  at  the  time  of  the  purchase." 
Although  this  case  has  been  severely  criticised  as  to  the  main  ground 
upon  which  it  was  decided,  the  part  of  it  just  quoted  has  not  been 
questioned,  and  the  general  result  was  undoubtedly  right.  See 
Toothe  V.  Bryce,  5  Dick.  Ch.  Rep.  599. 

It  is  true  that,  in  each  of  the  cases  of  aqueducts  above  cited,  both 
ends  of  the  pipe  —  as  well  that  from  which  the  flow  of  water  came 
as  that  to  which  it  was  carried  —  were  probably  visible,  while  here 
only  that  end  was  visible  which  was  on  the  dominant  tenement;  but 
I  am  of  the  opinion  that  where,  as  here,  and  in  Toothe  v.  Bryce,  the 
dominant  tenement  is  conveyed  and  the  servient  tenement  is  reserved, 
the  controlling  fact  is  that  the  existence  of  the  gimsi-easement  is 
shown  by  something  in  sight  upon  the  dominant  tenement.  That 
is  the  point  toi  which  the  attention  of  the  purchaser  is  naturally 
directed;  and  the  principle  upon  which  the  cases  go  is  that  he  is 
entitled  to  the  tenement  he  buys  in  its  then  present  condition,  and  the 
use  of  all  such  easements  as  are  apparent  and  continuous.  Now,  the 
easement  which  he  sees  on  the  tenement  which  he  buys  must  be 
held  to  be  apparent. 

It  seems  to  me  that,  in  Toothe  v.  Bryce,  the  result  must  have  been 
the  same  if  the  ram  which  drove  up  the  water  to  the  tenement  con- 
veyed to  the  complainant,  had  been  entirely  invisible. 

In  the  case  in  hand  the  controlling  fact  is  that  the  pump  was  there 
visible  and  in  use,  and  by  its  connection  with  the  invisible  pipe  lead- 
ing to  some  fountain  the  house  conveyed  to  complainant  was  sup- 
plied with  water. 

This  view  must  hold  if  the  defendant's  tenement  had  been  retained 
by  Mrs.  Mabey  and  the  action  were  against  her  instead  of  Mrs. 
Peterson;  and,  according  to  the  well-settled  rule  in  this  court,  the 


SECT.    l]  LARSEN    V.    PETERSON  525 

result  would  be  the  same  if  Mrs.  Mabey  had  conveyed  to  Mrs.  Peter- 
son and  retained  the  lot  conveyed  to  complainant,  provided  Mrs. 
Peterson  had  notice  of  the  actual  fact  that  the  pump  on  the  lot 
retained  was  supplied  by  water  from  a  well  which  might  prove  to  be 
on  the  lot  conve^^ed  (see  the  cases  on  this  point  in  7'oolhe  v.  Bryce)  ; 
and  provided,  of  course,  the  easement  had  the  other  elements  requi- 
site, viz.,  that  of  being  continuous  and  necessary  in  the  qualified 
sense  in  which  that  word  is  used  in  that  connection.  In  short,  in 
my  opinion  all  that  is  meant  by  "  apparent,"  in  that  connection,  is 
that  the  parties  should  have  either  actual  knowledge  of  the  quasi- 
easement  or  knowledge  of  such  facts  as  to  put  them  upon  inquiry. 

iN'ext,  as  to  the  quality  of  being  "  continuous."  Mr.  Gale,  in  the 
later  editions  of  his  book  —  §§  50,  52  (4th  £ng.  ed.,  1868,  pp.  87, 
89) — comes  to  the  conclusion  that  the  test  of  continuousness  is 
that  there  should  be  an  alteration  in  the  quality  —  or  "  disposition  " 
—  of  the  tenement,  which  is  intended  to  be,  and  is,  in  its  nature, 
permanent,  and  gives  the  tenement  peculiar  qualities,  and  results 
in  making  one  part  dependent,  in  a  measure,  upon  the  other.  It 
is  not  of  the  essence  of  this  test,  as  applied  to  a  watercourse,  that  the 
water  should  flow  of  itself  continuously,  but  the  test  is  that  the  arti- 
ficial apparatus  by  which  its  flow  its  produced  is  of  a  permanent 
nature.  It  is  with  a  view  of  bringing  out  this  quality  of  permanence 
that  the  learned  author  contrasts  this  class  of  easements  with  a  right 
of  way,  "  the  enjoyment  of  which  depends  upon  an  actual  inter- 
ference of  man  at  each  time  of  enjoyment."  Noav,  what  is  meant 
by  that  sentence  is  that  the  burthen  of  the  easement  in  the  case  of  a 
right  of  way  is  not  felt  by  the  servient  tenement  except  at  the  moment 
of  each  enjoyment  of  it.  A  permanent  structure  upon,  or  alteration 
of,  the  servient  tenement  is  not  a  necessary  element  of  such  an  ease- 
ment. And  by  the  expression  "  interference  of  man  at  each  time 
of  enjoyment "  is  meant  no  more  than  an  interference  with  the 
servient  tenement  by  an  entry  upon  it,  as  illustrated  not  only  by 
ordinary  rights  of  way,  but  also  by  rights  of  way  with  a  right  to  take 
something  from  the  servient  tenement,  as  in  Pohlen  v.  Bastard,  4 
Best  &  S.  257;  L.  K.  1  J.  B.  156. 

I  stop  here  to  say  that  the  distinction  between  a  watercourse  and  a 
formed  and  metaled  road  constructed  for  permanent  use  is  quite 
thin,  and  there  have  been  ex])ressions  of  judges  in  modern  times 
intimating  an  inclination  to  hold  that  where  a  dwelling  or  other 
such  tenement  is  conveyed  with  an  artificially-formed  road  leading 
to  it  over  other  lands  of  the  grantor  which  are  reserved,  a  right  of 
way  ought  to  be  held  to  pass. 

The  true  distinction  between  a  continuous  and  a  non-continuous 
easement  is  again  illustrated  by  the  case  of  tlic  rain-water  drain  in 
Pyer  v.  Carter,  through  which  the  water  actually  ran  only  when  it 
rained,  and  yet  it  was  held  continuous  ])ecause  it  was  permanent 
and  constituted  a  permanent  alteration  in  the  structure  of  the  teue- 


526  HIGBEE    CLUB    V.    ATLANTIC   CITY    CO.       [CHAP.    VIII 

ment.  Suppose  that  in  that  case  it  had  been  necessary  for  the  plain- 
tiff on  each  occasion  of  a  rain  lo  pump  the  rain-water  from  a  pit 
in  his  cellar  into  the  drain,  would  it  have  been,  by  reason  of  that 
arrangement,  any  the  less  continuous?  I  think  not.  In  short,  I 
conclude  that  the  word  "  continuous  "  in  this  connection  means  no 
more  than  this  —  that  the  structure  which  produces  the  change  in 
the  tenement  shall  be  of  a  permanent  character,  and  ready  for  use 
at  the  pleasure  of  the  owner  of  the  dominant  tenement  without  mak- 
ing an  entry  on  the  servient  tenement.  In  Seymour  v.  Lewis,  supra, 
although  the  Avater  did  run  by  gravity,  the  head  was  so  small  that  a 
sufficient  supply  could  not  be  procured  without  the  use  of  a  pump, 
and  a  pump  was  in  actual  use;  and  yet  that  did  not  destroy  the  con- 
tinuous character  of  the  easement. 

For  these  reasons  I  conclude  that  the  easement  here  in  question  is 
both  apparent  and  continuous.  That  it  was  "  necessary  "  in  the  sense 
in  which  that  word  is  used  in  this  connection  is  undeniable. 

In  this  case  there  is  no  room  for  the  application  of  the  distinc- 
tion, even  if  that  distinction  were  recognized  by  this  court,  between 
the  reservation  and  the  grant  of  an  easement  of  this  character  upon 
the  severance  of  the  tenement.  The  conveyances  from  the  original 
proprietor,  which  produced  the  severance,  w^ere  simultanous,  and 
amounted,  under  the  circumstances,  to  a  voluntary  partition  between 
complainant  and  defendant.  In  such  a  case,  as  shown  by  Chancellor 
Williamson,  in  Brakeley  v.  Sharp,  2  Stock.  207,  the  rule  that  a  man 
cannot  derogate  from  his  own  grant  does  not  apply. 

I  conclude  that  the  complainant  is  entitled  to  the  relief  prayed 
for,  and  will  so  advise. 


HIGBEE  FISHING  CLUB  v.  ATLANTIC  CITY  ELECTRIC 

COMPANY 
78  N.  J.  Eq.  434.     1911. 

On  final  hearing  on  bill,  pleadings  and  proof. 

Complainant  is  the  0A\nier  of  a  rectangular  lot  of  land  the  dimen- 
sions of  which  are  sixty  feet  by  one  hundred  feet.  The  land  is  not 
adjacent  to  a  highway  and  no  means  exists  for  travel  to  or  from 
complainant's  lot  without  the  necessity  of  passing  over  the  land  of 
others.  The  bill  seeks  to  establish  a  way  of  necessity  across  the  land 
of  defendant.  Complainant  purchased  the  lot  referred  to  in  the  year 
1897  from  the  executors  of  Jonas  Higbee,  deceased.  The  deed  to  com- 
plainant conveys  the  lot  by  metes  and  bounds,  together  with  the 
"  tenements,  hereditaments  and  appurtenances  thereto  belonging  or 
in  any  wise  appertfrining,"  but  makes  no  express  provision  touching 
any  easement  of  way  over  any  adjoining  land.    The  lot  of  land  when 


SECT.    l]  HIGBEE    CLUB    V.    ATLANTIC    CITY   CO.  627 

purchased  was  vaeuiit  salt  meadow;  a  clubhouse  has  since  been  erected 
on  it.  At  the  date  of  the  sale  the  vendors  owned  the  land  adjacent  to 
the  lot  sold  on  three  sides  thci'cof;  the  West  Jersey  and  Seashore 
Railroad  Company  owned  the  adjacent  land  on  the  fourth  side.  In 
the  year  1910  the  same  grantors  who  sold  to  complainant  conveyed 
the  land  which  has  been  referred  to  as  adjacent  to  complainant's  lot 
on  the  three  sides  thereof,  to  defendant. 

Leaking,  V.  C.  1.  It  is  well  settled  that  a  right  of  way  over  a 
grantor's  land  arises  when  such  grantor  sells  land  Mdiolly  surrounded 
by  other  land  which  he  retains,  or  when  the  part  sold  is  surrounded 
in  part  by  the  land  retained  and  in  part  by  that  of  a  stranger,  over 
which  there  is  no  right  of  access.  In  such  eases  the  way  is  a  neces- 
sary incident  to  the  grant,  for  without  it  the  grant  would  be  useless; 
the  grant  is  necessarily  for  the  beneficial  use  of  the  grantee  and  the 
way  is  necessary  to  the  use.  Stuyvesant  v.  Woodruff,  21  X.  J.  Law 
(1  Zab.)  133,  155;  Lore  v.  Stiles,  25  N.  J.  Eq.  (10  C.  E.  Gr.)  381, 
383;  French  v.  Smith,  40  N.  J.  Eq.  (13  Stew.)  361,  362;  3  Kent. 
Com.  *420;  14  Cyc.  1174  note  33.  By  the  grant  to  complainant 
a  way  of  necessity  over  the  remaining  lands  of  grantor  was  un- 
doubtedly created  in  favor  of  complainant. 

2.  I  think  it  also  clear  that  the  sale  of  the  remaining  land  from 
complainant's  grantor  to  defendant  was  not  operative  to  extinguish 
complainant's  rights.  Defendant  does  not  occupy  the  position  of  an 
innocent  purchaser  without  notice  of  complainant's  right.  An  ex- 
amination of  the  record  title  of  defendant's  grantors  would  have 
disclosed  not  only  the  conveyance  to  complainant  but  also  the  prior 
conveyance  to  the  railroad  company.  The  physical  conditions  then 
apparent  disclosed  complainant's  isolated  lot  with  no  highway  as  a 
means  of  access  to  it.  Not  only  were  these  conditions  reasonably 
apparent  but  defendant,  before  purchasing,  had  a  survey  of  the 
entire  premises  made  and  the  four  corners  of  complainant's  property 
were  staked  by  defendant  as  well  as  the  several  corners  of  the  tract 
which  defendant  was  about  to  purchase.  These  physical  conditions 
thus  actvuilly  ascertained  by  defendant,  in  connection  with  the  in- 
formation disclosed  by  the  record,  were  clearly  operative  to  charge 
defendant  with  notice  of  complainant's  rights. 

3.  The  jurisdiction  of  this  court  to  determine  complainant's  rights 
and  to  locate  the  part  of  defondant's  land  over  which  said  rights  nuiy 
be  exercised  has  been  recognized  and  acted  upon  in  Camp  v.  Wliihnan, 
51  N.  J.  Eq.  (6  Dick.)  467.  See,  also,  Pearne  v.  Coal  Creek  Co., 
(Tennessee),  18  S.  W.  Rep.  402. 

4.  In  Camp  v.  Whitman,  supra,  it  was  found  as  a  fact  that  at  the 
time  of  the  grant  the  parties  actually  contemplated  a  use  of  the  prem- 
ises granted  which  required  a  way  for  vehicles,  and  accordingly  it 
was  there  held  that  the  way  should  be  suitable  for  such  use.  In  the 
present  case,  however,  no  evidence  of  that  nature  exists.  On  the  con- 
trary,  the  physical   conditions  surrounding   complainant's  lot   were 


528  WORTHINGTON    V.    GIMSON  [CHAP.    VIII 

of  such  a  nature  that  a  way  for  vehicles  couhl  not  well  be  deemed  to 
have  been  contemplated  by  the  parties  at  the  time  of  the  grant,  and 
indeed  such  a  way  does  not  seem  to  have  become  at  any  time  neces- 
sary to  the  use  to  which  the  lot  has  been  devoted.  In  view  of  the  prin- 
ciples defined  in  London  v.  Rlggs  (1880),  L.  R.  13  Ch.  Div.  798,  I 
am  unable  to  find  justification  for  a  right  of  way  of  necessity  in  ex- 
tent more  than  a  footway. 

5.  The  claim  on  behalf  of  defendant  tliat  complainant  is  entitled 
to  use  the  property  of  the  railroad  company  for  access  to  his  lot  is 
clearly  untenable.  A  right  of  that  nature  could  only  be  acquired  by 
grant  or  adverse  user  for  twenty  years. 

If  the  parties  can  agree  upon  the  route  of  a  footway  I  will  advise 
a  decree  accordingly,  otherwise  there  may  be  a  reference  to  a  master 
to  determine  it.^ 


SECTION"   II 

BY    REFERENCE    TO    PREVIOUS    USE 

SAUNDEYS  V.  OLIFF 

Moore,  467.     1597. 

[See  this  case  given  on  p.  471,  ante.] 

WORTHINGTON  V.  GIMSON 
2  E.  &  E.  618.    1860. 

The  declaration  stated  that  plaintiff  was  possessed  of  a  messuage, 
farm,  buildings,  garden,  and  land,  with  the  appurtenances,  and  by 
reason  thereof  was  entitled  to  a  way  from  the  said  messuage,  (Src, 
unto,  into,  through,  over,  and  along  certain  land  of  defendant,  for 
plaintiff  and  his  servants,  &c.,  yet  defendant  obstructed  the  said  way. 

Pleas.  1.  Not  guilty.  2.  That  plaintiff  Avas  not  by  reason  of  his 
possession  of  the  said  messuage,  farm,  buildings,  garden,  and  land, 
with  the  appurtenances,  entitled  to  the  alleged  way  in  the  declara- 
tion mentioned,  in  manner  and  form  as  alleged. 

Issues  thereon  respectively. 

At  the  trial  before  WilUams,  J.,  at  the  Leicestershire  Summer 
Assizes,  1859,  it  appeared  that  the  plaintiff  was  the  occupier  of  a 
farm  and  house  at  Naneby,  a  hamlet  of  Market  Bosworth,  in  the 
county  of  Leicester;  and  that  he  also  occupied  therewith  two  closes 
in  the  adjoining  parish  of  Newbold  Vernon.     These  two  closes  ad- 

^  As  to  whether  the  servient  tenement  continues  bound  in  the  hands  of 
a  subsequent  purchaser  by  an  easement  created  by  implication,  see  Rubio 
Canon  Ass'n  v.  Everett,  154  Cal.  29;  Robinson  v.  Clapp,  65  Conn.  365;  Ingals 
V.  Planwndon,  75  III.  118;  Edwards  v.  Haegcr,  180  111.  99;  Muir  v.  Cox,  110 
Ky.  560;  Zimmerman  v.  Cockey,  118  Md.  491.  497;  Smith  v.  Lockwood,  100 
Minn.  221;  Schwann  v.  Cottori,  [1916]  2  Ch.  459. 


SECT.    II  ]  WORTHINOTON    V.   GIMSON  620 

joiiipfl  part  of  a  farm  occupied  by  the  defendant  under  Sir  W. 
Hartopp,  and  situated  in  Newbold  Vernon.  The  way  mentioned  in 
the  pleadings  passed  from  the  plaintiff's  farm  buildings  across  one 
of  his  said  closes  in  Newbold  Vernon,  and  then  across  the  farm  of 
the  defendant.  It  was  proved  that  the  way  had  been  used  by  the 
plaintiff  and  his  father,  who  occupied  the  farm  before  him,  for  more 
than  forty  years,  and  that  it  had  been  rendered  impassable  by  an 
obstruction  caused  by  the  defendant  in  January,  1859.  It  appeared 
that,  since  the  date  of  the  partition  deed  hereafter  mentioned,  the 
owner  of  the  farm  occupied  by  the  defendant  had  been  only  a  tenant 
for  life.  For  many  years  prior  to  January,  1820,  the  owners  of  the 
two  farms  had  been  jointly  interested  in  them,  the  late  Sir  E.  C. 
Hartopp  being  seised  of  one  undivided  moiety,  and  the  late  Mr.  John 
Pares  of  the  other.  In  January,  1820,  a  partition  deed  was  entered 
into  between  Sir  E.  C.  Hartopj)  and  Mr.  John  Pares,  whereby  the 
Newbold  Vernon  portion  of  the  land,  with  the  exception  of  the 
two  closes  before  referred  to,  were  conveyed  to  the  use  of  the  Hartopp 
family,  and  the  Naneby  portion,  together  with  the  said  two  closes, 
were  conveyed  to  Mr.  John  Pares  absolutely.  The  last-mentioned 
estate  came  by  sale  into  the  possession  of  one  Harris,  who  was 
the  owner  of  it  at  the  time  this  action  was  brought.  The  way  had 
existed  and  had  been  used  for  many  years  by  the  occupiers  of  either 
farm;  but  there  was  no  express  reservation  in  that  part  of  the  parti- 
tion deed  by  which  Mr.  Pares  granted  his  undivided  moiety.  The 
grant  by  the  same  deed,  by  Sir  E.  C.  Hartopp,  of  his  undivided 
moiety  in  the  Naneby  estate  to  Mr.  Pares,  conveyed,  Avith  other 
farms,  that  occupied  by  the  plaintiff,  ''  with  their  and  every  of  their 
rights,  members,  easements,  and  appurtenances."  The  jury  found 
^at  the  occupiers  of  the  Naneby  farm  had  enjoyed  the  way  as  of 
fact  up  to  and  before  the  deed  of  partition,  and  also  that  the  way 
had  been  enjoyed  for  twenty  years  since  the  partition  deed  up  to  the 
time  of  the  obstruction.  The  learned  judge  notwithstanding  this 
finding,  nonsuited  the  plaintiff,  reserving  to  him  leave  to  rule  that 
the  verdict  should  be  set  aside,  and  a  verdict  with  nominal  danuiges 
entered  for  him  instead  thereof. 

Crompton,  J.  I  am  of  opinion  that  my  Brother  Williams  was 
quite  right  at  the  trial,  and  that  we  cannot  enter  the  verdict  for  the 
plaintiff  upon  th(>  findings  of  the  jury.  We  are  asked  to  do  so  upon 
the  finding  that  tlierc  had  been  an  actual  use  of  the  way,  up  to  the 
time  of  the  partition;  nltliough  it  is  not  found  that  the  Avay  was 
used  of  necessity.  Mr.  (iale,  in  his  work  on  Easements,  states  very 
clearly  the  class  of  easements  which  pass  by  implication.  At  page 
76  (Sd  ed.,)  he  says,  "Where  such  easements  are  in  their  nature 
continuous  and  apparent,  they  pass  upon  a  severance  of  the  tenements 
by  implication  of  law,  without  any  words  of  new  grant  or  convey- 
ance.    Indeed  properly  speaking,   such  easements  are  not  revived, 


530  WORTHINGTON    V.   GIMSON  [CHAP.   VIII 

but  newly  created,  by  an  impliod  grant."  "  The  same  observation 
applies  to  easements,  commonly  called  '  of  necessity.'  "  He  adds : 
"  Other  easements,  such  as  ordinary  rights  of  way,  will  not  pass  upon 
a  severance  of  the  tenements,  unless  the  owner  '  uses  language  to  show 
that  he  intended  to  create  the  easement  de  novo.' "  The  last  words 
of  this  passage  are  those  of  Bayley,  B.,  in  Barlow  v.  Rhodes,  1  C. 
&  M.  448;  in  which  case  a  question  was  raised,  which  does  not  here 
arise,  whether  parol  evidence  was  admissible  in  explanation  of  the 
terms  of  a  deed  of  grant.  We  are  also  asked  to  say  that  the  way  in 
dispute  in  the  present  case  passed  under  the  word  "  appurtenances  " 
in  the  deed  of  January,  1820.  But  in  James  v.  Plant,  4  A.  &  E. 
749,  which  is  relied  upon  in  support  of  that  contention,  language  was 
used  in  the  deed  of  partition  which  showed  that  the  intention  of  the 
parties  was  that  the  way  should  pass,  and  the  court  held  that  the 
subsequent  general  word  "  appurtenances  "  might  be  properly  con- 
strued in  a  sense  wide  enough  to  give  effect  to  that  intention.  In 
the  present  case  the  parties  have  not  used  apt  words  in  the  deed  to 
express  an  intention  to  pass  the  way  in  dispute,  and  the  general 
words  which  follow  the  description  of  the  property  intended  to  be 
conveyed  do  not  add  to  or  alter  the  previous  words  of  conveyance. 
It  is  said  that  this  way  passed,  as  being  an  apparent  and  continuous 
easement.  There  may  be  a  class  of  easements  of  that  kind,  such  as 
the  use  of  drains  or  sewers,  the  right  to  "which  must  pass,  when  the 
property  is  severed,  as  part  of  the  necessary  enjoyment  of  the  severed 
property.  But  this  way  is  not  such  an  easement.  It  would  be  a 
dangerous  innovation  if  the  jury  were  allowed  to  be  asked  to  say, 
from  the  nature  of  a  road,  whether  the  parties  intended  the  right  of 
using  it  to  pass.  It  may,  besides,  be  very  naturally  supposed  to  have 
been  the  intention  of  the  parties  that,  on  the  partition  of  the  prog,- 
erty,  all  ways  not  incident  to  the  separate  enjoyment  of  each  of  the 
severed  portions  should  cease. 

Hill,  J.  I  am  of  the  same  opinion.  I  found  my  judgment  upon 
this,  that  there  is  nothing  in  the  deed  to  indicate  that  the  parties 
intended  to  use  the  word  "  appurtenances  "  in  any  other  than  the 
strict  legal  sense  of  the  word;  and  that  the  right  of  way  claimed  by 
the  plaintiff  is  not  within  that  sense.  Rule  discharged} 

1  The  opinion  of  Wightman,  J.,  is  omitted. 

See  Stevens  v.  On,  69  Me.  323;  Oliver  v.  Hook,  47  Md.  301;  Duval  v. 
Ridout,  124  Md.  193;  Morgan  v.  Meuth,  60  Mich.  238;  Bonnelli  v.  Blakemore, 
66  Miss.  136;  Spaidding  v.  Abbott,  55  N.  H.  423;  Stuyvesant  v.  WoodruiJ,  21 
N.  J.  L.  133;  Michelet  v.  Cole,  20  N.  M.  357;  Parsons  v.  Johnson,  68  N.  Y. 
62;  Morris  v.  Blunt,  49  Utah,  243;  Swazey  v.  Brooks,  34  Vt.  451;  Grymes  v. 
Peacock,  1  Bulst.  17;  Clements  v.  Lambert,  1  Taunt.  205;  Whalley  v.  Tomp- 
son,  1  B.  &  P.  371;  Polden  v.  Bastard,  4  B.  &  S.  258,  L.  R.  1  Q.  B.  156; 
Hall  V.  Byron.  L.  R.  4  Ch.  D.  667. 

Compare  Thomas  v.  Wiggcrs,  41  111.  470;  Atkins  v.  Bordman,  2  Met. 
(Mass.)  457  (but  see  Grant  v.  Chase,  17  Mass.  443) ;  Eliott  v.  Sallee,  14  Ohio 
St.  10;  Thomas  v.  Oiven,  20  Q.  B.  D.  225;  Hansford  v.  J  ago,  [1921]  1  Ch. 
322,  331. 


SECT.    II  ]  KAY    V.    OXLEY  531 

KAY  V.  OXLEY 
L.  R.  10  Q.  B.  360.     1875. 

Case  stated  by  an  arbitrator,  after  verdict,  taken  by  consent,  for 
the  plaintiff. 

The  action  was  brought  to  try  the  right  of  the  defendant  to  ob- 
struct a  way  which  the  plaintiff  claims  a  right  to  use  over  defend- 
ant's land  for  certain  purposes. 

The  following  are  the  material  parts  of  the  case:  — 

On  and  previous  to  the  1st  of  May,  1860,  the  defendant  was  the 
owner  in  fee  of  a  dwelling-house,  together  with  the  cottage,  stable, 
outbuildings,  and  garden  thereto  belonging,  now  the  property  of  the 
plaintiff,  and  called  "  Koseville,"  situate  at  Roundhay,  in  the  parish 
of  Barwick  in  Elmet,  in  the  county  of  York,  abutting  upon  a  public 
highway  called  Horse  Shoe  Lane,  leading  from  Leeds  to  Seacroft; 
and  defendant  was  also  the  owner  in  fee  of  an  adjoining  farmstead 
and  farm  called  Rose  Cottage  Farm,  abutting  also  upon  the  same 
highway,  and  having  a  private  farm  road  leading  from  it  to  the 
farm  buildings,  stack-yard,  and  other  premises  connected  therewith, 
and  to  a  field  adjoining  them. 

By  an  indenture  of  lease,  dated  the  1st  of  May,  1860,  defendant 
demised  Roseville  to  R.  J.  Hudson  for  a  term  of  ten  years  from  that 
date,  together  with  "  all  and  singular  the  rights,  privileges,  ease- 
ments, advantages,  and  appurtenances  whatsoever  to  the  said  mes- 
suage and  premises  thereby  demised,  belonging,  or  in  anywise  apper- 
taining or  therewith  used  or  enjoyed." 

At  the  time  of  the  demise  the  stable  had  no  upper  story,  and  was  of 
the  same  height  as  the  adjoining  cottage  demised  with  it. 

Hudson  entered  at  once  into  possession,  and  in  the  same  year  built 
at  his  expense  a  hay  chamber  or  upper  room  over  the  stable,  with  two 
square  openings  in  the  east  wall  of  the  chamber,  of  the  respective 
dimensions  of  4  ft.  7  in.  by  2  ft.  1  in.,  and  2  ft.  10  in.  by  2  ft.  10  in., 
for  the  purpose  of  getting  his  corn,  hay,  and  straw  into  his  hay  cham- 
ber, and  for  which  purpose  they  were  adapted.  Both  openings  were 
fitted  with  shutters,  and  the  shutters  to  one  of  them  opened  outwards 
There  were  no  other  means  for  the  admission  of  light  and  air  into 
the  chamber  except  a  man-hole,  2  ft.  6  in.  by  2  ft.  1  in.  square,  cut 
through  the  south-east  corner  of  the  floor. 

The  east  wall  and  the  openings  abutted  upon  and  looked  into  the 
stack-yard  and  adjoining  premises  of  Rose  Cottage  Farm;  and  there 
was  no  access  to  them  with  carts  and  wagons  out  of  any  part  of  the 
premises  demised  to  Hudson,  and  the  only  way  by  which  carts  and 
wagons  could  be  brought  up  to  them  was  by  taking  them  along  the 
private  farm  road  to  Rose  Cottage  Farm. 

Before  making  these  alterations,  Hndson  consulted  the  defendant 
and  Robert  Barber,  who  was  then  the  defendant's  tenant  of  Rose 


532  KAY    V.    OXLEY  [CHAP.    VIII 

Cottage  Farm,  upon  them,  and  obtained  their  consent  to  them,  and,  at 
the  same  time,  their  permission  to  use  Rose  Cottage  Farm  private 
road  to  get  to  the  hay  chamber,  when  comph;ted,  witli  bis  cart  and 
wagon  loads  of  hay,  corn,  and  straw. 

No  openings  were  made  in  the  opposite  or  west  wall  of  tbe  hay 
chamber. 

The  lessee  Hudson  remained  in  occupation  of  Roseville  and  prem- 
ises until  about  March,  1863,  when  he  sublet  them  to  a  Mrs.  Fletcher, 
who  remained  in  occupation  twelve  months;  and  on  her  quitting, 
them,  Hudson  sublet  them  to  Richard  Green,  who  remained  in  occu- 
pation up  to  the  expiration  of  the  aforesaid  lease  of  1860,  and  was  in 
actual  occupation  and  using  the  defendant's  farm  road,  as  Hudson 
had  done,  to  get  hay  and  corn  into  the  hay  chamber,  at  the  time  when 
the  plaintiff  purchased  from  the  defendant,  as  hereinafter  mentioned. 

In  1868,  the  defendant  entered  into  the  occupation  of  Rose  Cottage 
I  arm  himself,  and  has  continued  to  occupy  it  to  the  present  time, 
having  a  bailiff  residing  in  the  farmstead ;  and  he  has  been  all  along 
and  still  is  the  owner  of  it. 

All  the  time  Hudson  and  his  under-tenants  were  in  occupation  of 
Roseville  they  respectively  used  the  defendant's  private  farm  road 
with  their  carts  and  wagons  to  get  their  hay,  corn,  and  straw  into 
the  hay  chamber,  and  were  never  interrupted  or  interfered  with  by 
the  defendant  or  his  tenants  or  servants. 

The  permission  which  the  defendant  gave  to  his  lessee  Hudson 
before  building  the  hay  chamber  was  never  withdrawn,  but  on  a  few 
occasions  the  servants  of  Hudson  and  Green  asked  permission  of  the 
defendant's  tenant  and  bailiff  to  use  the  road. 

In  May,  1870,  the  plaintiff  agreed  with  the  defendant  to  purchase 
Roseville;  and  by  a  conveyance  dated  the  2d  of  August,  1870,  de- 
fendant conveyed  to  plaintiff  in  fee  "  all  that  messuage  or  dwelling- 
house,  with  the  outbuildings,  conservatory,  gardens,  and  pleasure 
grounds  thereto  belonging,  called  Roseville,  situate  at  Roundhay,  in 
the  parish  of  Barwick  in  Elmet,  in  the  county  of  York,  and  abutting 
upon  Horse  Shoe  Lane,  leading  from  Leeds  to  Seacrof t ;  And  all  that 
cottage,  stable-yards,  outbuildings,  and  close  of-  land  adjoining  the 
said  messuage  or  dwelling-house;  Together  with  all  buildings,  erec- 
tions, fixtures,  commons,  hedges,  ditches,  fences,  ways,  and  rights  of 
way,  waters,  watercourses,  drains,  cisterns,  lights  and  rights  of  light, 
liberties,  privileges,  easements,  advantages,  and  appurtenances  what- 
soever to  the  said  messuage  or  dwelling-house,  cottage,  land,  and 
hereditaments,  or  any  of  them,  appertaining,  or  with  the  same  or 
any  of  them  now  or  heretofore  demised,  occupied,  or  enjoyed,  or 
reputed  as  part  or  parcel  of  them,  or  any  of  them,  or  appurtenant 
thereto." 

At  the  time  of  the  conveyance  the  hay  chamber,  with  the  two  open- 
ings in  the  east  side,  stood  precisely  as  it  had  been  erected  by  Hudson, 

The  plaintiff  entered  into  possession,  and  began  at  once  to  use 


SECT.    II  ]  KAY    V.    OXLEY  533 

the  defendant's  farm  road  to  bring  his  carts  and  wagons  np  to  the 
openings  in  the  hay  chamber,  and  so  to  get  his  hay  and  straw  into 
the  chamber,  and  continued  to  do  so  without  interruption  up  to  May, 
1873,  when,  and  ever  since,  he  has  been  refused  the  use  of  the  road 
by  the  defendant. 

As  things  were  at  the  time  of  the  purchase  by  the  plaintiff  and  now 
are,  the  plaintiff  had  not,  nor  has  he  now,  any  way  of  putting  hay, 
corn,  and  straw  into  his  chamber  except  by  using  the  defendant's 
farm  road,  or  incurring  expense  in  the  necessary  alteration  of  his 
buildings  and  premises  which  he  purchased  from  the  defendant. 

The  question  for  the  court  was,  whether  the  plaintiff  has  a  right 
of  way  over  the  defendant's  private  farm  road  to  and  for  the  use 
of  his  hay  chamber  for  the  purposes  mentioned  or  any  or  either  of 
them,  either  by  virtue  of  or  ancillary  to  the  conveyance  of  1870. 

Blackburn,  J.  I  think  when  we  come  to  understand  this  case  that 
the  plaintiff  is  entitled  to  the  right  of  way.  The  facts  are  these :  the 
plaintiff  purchased  Roseville  of  the  defendant,  and  the  defendant  by 
the  deed  conveyed  to  the  plaintiff  the  lands  and  hereditaments,  to- 
gether with  all,  &c.  [The  learned  judge  read  the  clause.]  It  is  not 
disputed  that  if  the  conveyance  had  stopped  at  the  word,  ''  appertain- 
ing "  the  plaintiff's  case  might  not  have  been  sustainable,  but  it  goes 
on  to  add  the  words :  "  or  with  the  same  or  any  of  them  now  or  here- 
tofore demised,  occupied,  or  enjoyed,  or  reputed  as  part  or  parcel  of 
them,  or  any  of  them,  or  appurtenant  thereto."  We  have  now  to  look 
at  the  facts  in  order  to  see  whether  the  particular  right  of  way  in 
question  was  in  fact  occupied  or  enjoyed  or  reputed  as  appurtenant 
to  Roseville.  Mr.  Herschell  says  that,  where  a  man  is  occupier  of 
two  adjoining  pieces  of  land,  and  uses  both  for  the  convenience  of 
liimself  as  the  actual  occupier  of  both,  anything  that  he  may  do  on 
the  one  is  prima  facie  not  a  right  appurtenant  to  the  other,  and  would 
not  pass  as  appurtenant;  and  that  when  he  passes  across  the  one 
close  to  the  other,  he  exercises  the  right  of  going  from  one  to  the 
other  merely  for  his  convenience  as  occupier  of  the  two,  and  tliat  he 
does  not  prima  facie  enjoy  or  occupy  the  way  as  appurtenant  to  the 
other,  and  that  the  way  would  not  pass  as  a  right  enjoyed  or  as 
appurtenant.  But  though  that  may  prima  facie  appear  to  be  the 
case;  yet  if  there  be  acts  of  ownership  and  user  of  a  road  by  a  man 
across  land  for  the  enjoyment  and  exclusive  convenience  of  himself 
as  occupier  of  tlie  adjoining  lands,  notwithstanding  the  cases  cited,  I 
do  not  til  ink,  in  point  of  law,  we  can  say  that  the  fact  of  a  road 
having  been  so  enjoyed  and  occupied  oidy  during  the  time  lie  had 
unity  of  ])ossession  or  unity  of  seisin  prevents  it  being  enjoyed  as 
appurtenant. 

The  first  case  relied  on  for  the  defendant  is  Tliomson  v.  W^aterloxc, 
Law  Rep.  6  Eq.  36,  41,  before  the  late  Master  of  the  Rolls;  and  I 
cannot  help  thinking  that  he  must  have  been  misutiderstood.  lie  is 
reported  to  have  said:    "There  is,  as  it  appears  to  me,  a  distinction 


534      '  KAY    V.    OXLEY  [CHAP.    VIII 

between  the  user  of  a  way  which  has  been  made  by  the  owner  of  ad- 
joining closes,  and  a  right  of  way  which,  previously  to  such  unity  of 
possession,  existed  from  one  close  to  the  other,  and  which  has  become 
merged  by  the  fact  of  the  same  person  having  become  the  owner  of 
both  properties."  I  quite  agree  that  there  is  a  distinction.  The  way 
which  had  existed  previously  to  the  unity  of  possession,  and  which 
still  continued  to  exist,  is  obviously  one  to  be  used  and  enjoyed  as 
appertaining  to  the  other  premises.  In  the  case  of  the  other  way  it 
would  require  to  be  seen  whether  it  had  been  so  used  and  enjoyed. 
Then  the  Master  of  the  Rolls  continues :  "  I  do  not  think  that  the 
judges  in  James  v.  Plant,  4  Ad.  &  E.  749,  intended  to  lay  down  that 
such  words  of  conveyance  as  were  used  in  that  case  and  in  the 
present  would  constitute  the  grant  of  a  right  of  way,  where  the  user 
had  sprung  solely  from  the  convenience  of  the  person  who  held  both 
tenements,  which  convenience  ceased  to  exist  when  the  severance  be- 
tween the  closes  took  place."  Taking  that  as  the  rule  to  be  applied 
as  to  matter  of  fact,  I  think  it  is  a  sound  one.  I  think  whenever  it 
appears  that  an  alleged  right  of  way  had  been  used  for  the  con- 
venience of  the  person  who  held  both  tenements,  which  convenience 
ceased  to  exist  when  a  severance  took  place,  it  is  a  good  rule  to  adopt 
to  say  that  the  Avay  was  not  used  or  enjoyed  as  appurtenant  to  the 
premises  —  it  was  used  for  the  convenience  of  the  man  who  was  the 
occupier  of  the  two,  and  when  he  ceases  to  be  the  occupier  of  the  two, 
I  think  it  is  no  longer  appurtenant.  That,  I  think,  is  a  sound  rule. 
And  though  the  facts  of  the  case  before  the  late  Master  of  the  Rolls 
are  not  set  out,  I  presume  they  were  such  as  to  show  that  the  right 
of  way  said  to  pass  was  for  the  convenience  of  the  person  so  long 
as  he  was  the  occupier  of  the  whole  premises  to  which  and  over 
which  the  way  went.  Looking  at  it  in  that  view,  it  would  seem  to 
have  been  a  sound  enough  decision. 

In  Langley  v.  Hamynond,  Law  Rep.  3  Ex.  168,  the  Lord  Chief 
Baron  is  reported  to  have  laid  it  down  as  matter  of  law :  "'  Since  it 
does  not  appear  here  that  at  any  antecedent  time,"  that  is,  before 
the  unity  of  possession,  "  there  existed  a  right  over  one  of  these  pieces 
of  land  attached  to  the  other  piece  of  land,  the  effect  of  these  words  " 
(together  with  all  ways  used  or  enjoyed  therewith)  "  cannot  make  or 
revive  a  right  of  way  that  never  before  existed."  And  then  he  goes 
on  to  cite  what  I  have  read  from  the  judgment  of  the  Master  of  the 
Rolls  in  Thomson  v.  Waterlow,  Law  Rep.  6  Eq.  41.  ISTo  doubt  the 
Lord  Chief  Baron  so  lays  down  the  law,  and  if  that  had  been  the 
decision  of  the  Court  of  Exchequer,  we  should  have  been  bound  by  it, 
and  we  must  have  left  the  question  whether  it  was  right  or  no  for  the 
Court  of  Error.  But  I  cannot  agree  that,  upon  the  construction  of 
words  like  those  in  the  conveyance  here  in  question,  they  cannot  as  a 
matter  of  law  create  a  right  of  way  that  did  not  previously  exist  as 
a  right.    If  the  words,  as  my  Brother  Lush  suggested  in  the  course  of 


SECT.   II J  KAY    V.    OXLEY  535 

the  argument,  had  been  "  together  with  the  right  of  way  which 
Green  de  facto  has  enjoyed  of  passing  over  the  private  farm  road," 
supposing  that  had  been  a  right  of  way  never  enjoyed  as  of  right, 
but  merely  a  way  de  facto  used,  still  I  think  the  words  would  have 
clearly  enough  created  a  right  of  way.  I  quite  agree,  where  there  is 
a  track  across  the  middle  of  a  stack-yard,  and  the  owner  sold  one 
side  of  the  stack-yard  to  enable  the  purchaser  to  throw  it  into  his 
pleasure-grounds,  that  track  across  the  middle  of  the  stack-yard  would 
not,  to  use  the  words  of  the  Master  of  the  Rolls,  be  a  right  of  Avay 
appurtenant  to  every  portion  of  the  stack-yard,  but  a  right  of  Avay 
solely  for  the  convenience  of  the  person  who  held  the  whole  stack- 
yard, and  which  convenience  ceased  to  exist  when  he  severed  one  part 
of  the  stack-yard  from  the  other.  That  is  a  good  and  sound  distinc- 
tion, and  taking  it  in  that  way,  which  is  the  point  Martin,  B.,  went 
upon,  I  think  the  decision  is  perfectly  good  and  right.  As  to  the  Lord 
Chief  Baron's  dictum,  I  do  not  think  that  what  the  Master  of  the 
Rolls  said  amounted  to  so  much ;  but  if  it  did,  we  have  the  dicta  of 
the  Lords  Justices  James  and  Mellish  in  Watts  v.  Kelson,  Law  Rep. 
6  Ch.  Ap.  172,  174,  showing  that  they  do  not  agree  in  the  doctrine. 
It  cannot  make  any  difference  in  law,  whether  the  right  of  way  was 
only  de  facto  used  and  enjoyed,  or  whether  it  was  originally  created 
before  the  unity  of  possession,  and  then  ceased  to  exist  as  a  matter 
of  right,  so  that  in  the  one  case  it  would  be  created  as  a  right  de 
novo,  in  the  other  merely  revived.  But  it  makes  a  great  difference, 
as  matter  of  evidence  on  the  question,  wliothcr  the  way  was  used  and 
enjoyed  as  appurtenant. 

We  have  now  to  apply  this  to  the  facts  of  the  present  case.  As  a 
matter  of  evidenc(>  we  find  it  stated  in  the  case  that  Hudson,  the  then 
tenant  of  Roseville,  wlio  held  on  a  lease  for  ten  years,  made  a  hay- 
loft, with  two  large  openings  to  admit  the  hay,  which  could  not  be 
used  except  by  bringing  the  hay  in  carts  below  them  along  the  farm 
road,  and  these  openings,  though  not  absolutely  essential  to  the  use 
of  tlie  hay-loft,  were  extremely  important  and  material  for  the  use 
of  it.  Before  Hudson  built  the  loft  and  made  these  openings,  he 
applied  to  the  defendant,  the  freeholder  of  the  farm  and  landlord 
of  Roseville,  and  obtained  his  consent  to  the  alterations  being  made; 
and  at  the  same  time  Hudson  asked  and  obtained  leave  to  use  the 
private  farm  road  in  question  to  get  the  hay  and  straw  in  carts  to 
his  hay  chamber.  Hudson  remained  in  occupation  of  Roseville  until 
March,  1863,  when  he  sublet  to  Mrs.  Fletcher,  who  remained  in  occu- 
pation twelve  months;  and  on  her  quitting,  Hudson  sublet  to  Green, 
who  remained  in  occupation  up  to  the  expiration  of  the  lease,  and 
was  in  actual  occupation  and  using  the  defendant's  farm  road  as 
Hudson  had  done,  to  get  hay,  straw,  and  corn  into  the  loft,  at  the 
time  when  the  plaintiff  purchased  Roseville  from  the  defendant.  I 
do  not  think  it  necessary  to  consider  whether  or  not  that  parol  license, 


536  KAY    V.    OXLEY  [CHAP.   VIII 

whicli  was  given  by  tlic  defendant  to  use  the  road,  was  revocable; 
or  whether  an  action  might  not  have  been  maintained  for  obstructing 
the  tenant  in  doing  that  which  he  had  a  parol  license  to  do;  or 
whether  an  action  of  trespass  could  have  been  brought  against  the 
tenant  for  using  that  road.  I  do  not  think  it  material  to  decide  that. 
The  license  was  not  in  fact  revoked.  The  tenant  for  the  time  being 
of  Roseville  continued  to  use  the  road  as  appurtenant  to  it,  and  had 
the  apparent  necessity  of  using  it  for  the  purpose  of  getting  to  the 
two  large  openings  in  the  loft,  exactly  in  the  same  way  as  if  the  con- 
sent of  the  defendant  had  been  in  Avriting,  and  a  wafer  stuck  on  it. 
There  would  not  have  been  the  slightest  difference  in  the  use  and 
enjoyment  of  the  road.  In  the  one  case  it  would  have  become 
appurtenant,  and  in  the  other  case  it  would  only  have  been  enjoyed 
as  if  it  were  appurtenant.  I  think  in  considering  the  words,  we 
should  see  what  they  really  mean,  and  apply  them  to  the  state  of 
circumstances  existing  at  the  time  of  the  conveyance;  and  I  think 
this  right  to  carry  hay  and  straw  to  these  two  openings  was  in  point 
of  fact  then  occupied,  and  enjoyed,  and  reputed  as  appurtenant  to 
these  premises;  and  therefore  that  the  plaintiff  is  entitled  to  judg- 
ment. 

Lush,  J.  I  am  of  the  same  opinion.  The  only  question  is  whether 
the  words  of  this  conveyance  manifest  an  intention  that  the  mode  of 
access  which  had  been  used  by  the  tenant  of  Roseville  to  the  hay 
loft  for  the  purpose  of  conveying  fodder  there,  should  pass  to  the 
plaintiff  under  that  conveyance  as  a  right  of  way.  It  is  beyond 
doubt,  as  a  fact,  that  during  the  subsistence  of  the  lease,  the  tenant 
and  his  successors  had  used  this  way  for  the  purpose  of  conveying 
hay  and  straw,  &c.,  to  the  hay  loft.  It  was  the  only  mode  of  access 
to  these  openings,  and  it  existed  up  to  the  time  when  the  purchase 
was  made  by  the  plaintiff.  The  conveyance  of  the  house  and  stable, 
together  with  the  other  premises,  has  these  words,  "  Together  — " 
[The  learned  judge  read  the  clause].  The  latter  words  were  clearly 
intended  to  pass,  if  there  were  any  such  thing  enjoyed,  something  not 
strictly  appurtenant  to  the  premises,  which  could  not  have  been 
claimed  as  a  matter  of  right  Mdthout  these  larger  words.  Applying 
that  to  the  facts  as  they  existed  at  the  time  of  the  conveyance,  there 
was  a  way  which  had  been  used  by  the  tenant  for  the  time  being  as 
a  mode  of  access  to  a  part  of  the  premises,  namely,  the  hay  loft,  and 
which  had  been  used  and  enjoyed  as  if  that  way  had  been  appurte- 
nant to  it,  and  the  language  used,  I  think,  expresses,  when  you  come 
to  apply  it  to  the  facts,  the  intention  to  pass  this  right  of  way  as 
specifically  as  if  the  conveyance  had  said  "  including  all  the  ways  and 
easements  to  the  hay  loft  as  the  same  have  been  heretofore  enjoyed 
by  Green."  That  undoubtedly  would  have  passed  this  way.  I  cer- 
tainly was  struck  with  the  observation  of  Mr.  Herschell,  that  in  none 
of  the  reported  cases  does  it  appear  that  the  way  claimed  and  held 


SECT.    II  ]  KAY    V.    OXLEY  537 

to  pass  had  been  newly  created  as  a  right  by  the  deed  in  question. 
Mr.  Herschell  says  that  in  all  the  cases  it  appears  (and  certainly 
the  note  in  2  "Wms.  Notes  to  Saund.  p.  809  n.  (c)  does  justify  that 
position)  that  there  had  been  originally  a  right  of  way  appurtenant 
to  the  premises  which  had  been  suspended,  but  not  extinguished  by 
unity  of  possession ;  and  the  question  in  all  the  cases  was  whether  the 
general  words  used  in  the  conveyance  were  intended  to  revive  the 
right.  I  certainly  was  struck  with  that  observation,  because  I  have 
an  impression  even  now,  that  there  are  cases  to  be  found  in  which 
rights  of  way  have  been  thus  created  by  deed.  But  however  that  may 
be,  I  cannot  see  anything  to  prevent  the  acquisition  of  such  a  right 
by  the  words  used  in  the  present  instance.  I  do  not  think  that  we 
are  at  all  acting  in  conflict  with  the  decision  of  the  late  Master  of  the 
Rolls  in  Thomson  v.  Waterloir,  Law  Rep.  6  Eq.  36.  That  case  is 
obscurely  stated,  but  I  collect  from  the  terms  of  the  judgment  that 
there  had  been  no  specific  defined  portion  of  the  soil  appropriated 
by  the  owner  as  a  roadway  to  the  severed  property  as  appurtenant 
to  it,  but  that  he  had  been  used  to  ride  across  one  field  in  any  direc- 
tion he  thought  proper  in  order  to  get  to  another  field.  As  to  the 
case  in  the  Exchequer  of  Langlcy  v.  Hammond,  Law  Rep.  3  Ex.  161, 
168,  170,  I  thiidv  that  case  is  rightly  decided,  although  not  on  the 
ground  put  by  the  Lord  Chief  Baron.  I  prefer  the  ground  on  Avhich 
my  Brother  Bramwell  puts  it.  Looking,  therefore,  at  the  language 
used,  I  think  it  was  intended  to  grant  this  right  of  way  or  access  to 
the  hay  loft,  just  as  if  it  had  been  expressed  in  terms  that  it  was  in- 
tended to  pass  the  use  of  the  road  as  the  access  to  the  hay  loft,  as  it 
had  been  enjoyed  by  Green,  wiio  lield  the  premises  up  to  tlic  time  of 
the  conveyance. 

Blackburn,  eT.  With  regard  to  the  observation  on  the  older  cases, 
1  may  add  that  in  Kooystra  v.  Lucas,  5  B.  (S:  Al.  830,  page  833,  it 
does  not  appear  affirmatively  whether  the  right  of  way  claimed  had 
or  had  not  been  created  before.  The  judges  make  no  mention  one 
way  or  the  other;  but  the  Chief  Justice's  direction  was  that  the  plain- 
tiff" was  entitled  to  the  right  of  way  claimed  for  his  cattle  to  the  spot 
of  ground  on  wliicli  he  had  built  his  stable  and  coach-house,  "that 
being  a  part  of  the  demised  premises  to  which  such  a  way  had  been 
used  previously  to  1814,"  the  date  of  the  conveyance.  It  might  have 
been  that  the  right  of  way  existed  before  tlir  unity  of  possession,  l)ut 
that  is  certainly  not  stated  affirmatively. 

Judgment  for  the  plainfiff.^ 

1  See  Bradshaw  v.  Ei/rr.  do.  El.  570;  Worhdg  v.  Kingmrl,  Cro.  El.  794; 
Barkshirc  v.  Crnibh.  18  Cli.  D.  610;  Bai/iry  v.  (it.  Western  Ry.  Co.,  26  Ch. 
D.  434;  Bariyjg  v.  Abingdon,  [1S921  2  Ch.  374,  389. 


538  WICKHAM    V.    HAWKER  [CHAP.    VIII 

SECTION   III 

BY  WORDS   OF   RESERVATION   OR   EXCEPTION. 

WICKHAM  V.  HAWKER  AND  OTHERS 
7  M.  &  W.  63.    1840. 

Parke,  B.^  This  case  was  tried  before  my  Brother  Coleridge,  at 
the  last  Summer  Assizes  at  Winchester,  when  several  points  were  re- 
served, which  were  fully  argued  before  my  Brothers  Alderson, 
Gurney,  and  myself,  at  the  sittings  after  Hilary  Term. 

It  was  an  action  of  trespass  qu.d.  jr.  against  the  defendant  Hawker 
and  two  others,  for  entering  the  plaintiff's  closes,  and  hunting  and 
searching  for  and  killing  game. 

The  special  pleas  were,  first,  that  Vidler  and  Cox  were  seised  of  the 
manor  of  Bullington,  in  trust  for  Widmore,  and  that  Widmore, 
Vidler,  and  Cox,  by  an  indenture,  in  1712,  between  them  and  Wade, 
and  sealed  by  Wade,  released  parcel  of  the  demesne  lands  of  the 
manor  of  Bullington,  comprising  the  locals  in  quo,  to  Wade,  "  except- 
ing and  always  reserving  to  Widmore,  Vidler,  and  Cox,  their  heirs 
Q  and  assigns,  liberty,  with  servants  or  otherwise,  to  come  upon  the 
lands  so  conveyed,  and  there  to  hawk,  hunt,  fish,  and  fowl  at  any  time 
thereafter,  at  their  will  and  pleasure :  and  the  said  John  Wade  did 
ro  thereby  grant  to  Widmore,  Vidler,  and  Cox,  their  heirs  and  assigns, 
the  said  liberty  so  excepted  and  reserved."  The  plea  then  states  a 
release  and  conveyance  from  Vidler  and  Cox  to  Widmore  of  the 
manor  and  liberty,  and  deduces  from  him  a  title  to  both  to  the  de- 
fendant Hawker,  and  he  and  the  others,  as  his  servants  and  in  his 
company,  justify  the  trespasses  by  virtue  of  the  liberty. 

The  second  special  plea  states,  that  the  occupiers  of  the  manor  had 
used  and  enjoyed,  and  Hawker  as  such  occupier  was  entitled  to  use 
and  enjoy,  the  right  of  hunting,  hawking,  and  fowling,  for  sixty 
years,  by  .themselves  and  with  servants. 

The  replication  to  the  first  plea  takes  issue  on  the  allegation  of  a 
grant.  That  to  the  second  denies  the  user  and  enjoyment.  There  was 
a  new  assignment  of  the  trespasses  committed  by  the  two  other  de- 
fendants, by  command  of  Hawker  in  his  absence,  in  hunting,  &c. ; 
and  pleas  to  the  new  assignment,  —  first,  a  reservation  and  grant  of 
a  liberty,  in  the  like  terms  and  by  a  similar  deed  to  that  in  the 
second  plea,  to  hunt,  kc.  hy  servants;  secondly,  a  similar  plea  to  the 
third,  of  sixty  years'  user,  by  the  occupier  and  hy  servants. 

The  replication  to  the  first  plea  to  the  new  assignment  denied  the 
grant;  to  the  second,  denied  the  user  and  enjoyment. 

The  principal  questions  in  the  case  were,  how  the  issues  raised  by 
the  replication  to  the  first  special  plea  to  the  declaration,  and  the 

1  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


SECT.    Ill]  WICKHAM    V.    HAWKER  539 

first  plea  to  the  new  assignment,  ought  to  be  found;  and  that  de- 
pends upon  the  legal  effect  of  the  deed  of  1712. 

The  liberty  "  of  hawking,  hunting,  fishing,  and  fowling,"  is,  by 
the  terms  of  that  deed,  "  excepted  and  reserved  to  "Widmore,  Vidler, 
and  Cox ;  "  but  so  far  as  related  to  Widmore  it  could  not  be  a  good 
exception  or  reservation,  because  he  was  not  a  conveying  party  to 
the  deed;  nor  is  such  a  liberty,  whether  it  be  a  mere  easement  or 
a  profit  a  prendre,  properly  and  in  correct  legal  language,  either  an 
exception  or  a  reservation.  This  point  was  expressly  decided  in  the 
case  of  Doe  d.  Douglas  v.  Lock,  2  Ad.  &  Ell.  743,  where  most  of  the 
authorities  were  cited  and  fully  considered.  Lord  Denman^  in  deliver- 
ing the  judgment  of  the  court,  says,  "  that  the  privilege  of  hawking, 
hunting,  fishing,  and  fowling  is  not  either  a  reservation  or  an  ex- 
ception in  point  of  law;  it  is  only  a  privilege  or  righi  granted  to  the 
lessor,  though  words  of  reservation  and  exception  are  used."  As  the 
indenture  was  executed  by  Wade,  the  words  of  reservation  and  excep- 
tion operated  as  a  grant  by  him  to  the  three  —  Widmore,  Vidler, 
and  Cox,  and  the  plea  properly  stated  the  legal  effect  of  those  words 
as  a  grant  by  him.  Consequently  this  issue  ought  to  have  been 
found  for  the  defendant,  and  the  verdict  must  be  entered  accordingly.^ 

1  "  The  rent,  heriots,  suit  of  mill,  and  suit  of  court,  arc  the  only  things 
which,  according  to  the  legal  sense  and  meaning  of  the  word,  are  reservations. 
For  we  are  of  opinion,  that  what  relates  to  the  privileges  of  hawking,  hunt- 
ing, fishing,  and  fowling,  is  not  either  a  resei-vation  or  an  exception  in  point 
of  law;  and  it  is  only  a  privilege  or  right  granted  to  the  lessor,  though  words 
of  reservation  and  exception  are  used.  And  we  think,  that  what  relates  to 
the  wood  and  the  underground  produce  is  not  a  reservation,  but  an  excep- 
tion. Lord  Coke,  in  his  Commentary  on  Littleton,  '  47  a,  says,  'Note  a 
diversity  between  an  exception  (which  is  ever  of  part  of  the  thing  granted, 
and  of  a  thing  in  esse),  for  which,  exceptis,  salvo,  proeter,  and  the  like,  be 
apt  words;  and  a  reservation  which  is  always  of  a  thing  not  in  esse,  but 
newly  created  or  reserved  out  of  the  land  or  tenement  demised.'  In  Shep- 
pard's  Touchstone,  p.  80,  'A  reservation  is  a  clause  of  a  deed  whereby  the 
feoffor,  donor,  lessor,  grantor,  &c.,  doth  reserve  some  new  thing  to  himself 
out  of  that  which  he  granted  before :  '  and,  afterwards,  '  This  doth  differ 
from  an  exception,  which  is  ever  of  part  of  the  thing  granted,  and  of  a 
thing  in  esse  at  the  time;  but  this  is  of  a  thing  newly  created  or  reserved 
out  of  a  thing  demised  that  was  not  in  esse  before;  so  that  this  doth  always 
reserve  that  which  was  not  before,  or  abridge  the  tenure  of  that  which  was 
before.'  And  afterwards,  '  It  must  be  of  some  other  thing  i.ssuing,  or  coming 
out  of  the  thing  granted,  and  not  a  part  of  the  thing  itself,  nor  of  something 
is.suing  out  of  another  thing.'  And  afterwards,  '  If  one  grant  land,  yielding 
for  rent,  money,  corn,  a  horse,  spurs,  a  rose,  or  any  such  like  thing;  this  is 
a  good  resen'ation :  but  if  the  reservation  be  of  the  grass,  or  of  the  vesture 
of  the  land  or  of  a  common,  or  other  profit  to  be  taken  out  of  the  land; 
these  reservations  are  void.'  In  Brooke's  Abridgment,  title  Reservation, 
pi.  46,  it  is  said,  that  if  a  man  leases  land,  reserving  common  out  of  it*  or 
the  herbage,  grass,  or  profits  of  the  land  demised,  this  is  a  void  reservation, 
for  it  is  parcel  of  the  thing  granted,  and  is  not  like  where  a  man  leases  his 
manor  and  the  like,  except  White  Acre,  for  there  the  acre  is  not  leased;  but 
here  the  land  is  leased;  therefore  the  reservation  of  the  herbage,  vesture, 
or  the  like,  is  void.  It  must  be  obsen-ed.  however,  that,  though  in  Co.  Lit. 
47  a,  the  distinction  between  a  reservation  and  an  exception  is  pointed  out, 


540  WICKHAM    V.    HAWKER  [CHAP.    VIII 

yet  in  p.  143  a,  speaking  of  the  word  rencrvalion,  Lord  Coke  says,  '  Sometime 
it  hath  the  force  of  saving  or  excepting.  So  as  sometime  it  serveth  to  reserve 
a  new  thing,  viz.,  a  rent,  and  sometime  to  except  part  of  the  thing  in  esse 
that  is  granted.'  He  does  not,  however,  go  on  to  illustrate  that  position;  and 
as,  only  two  pages  before,  in  142  a,  he  had  said  to  the  same  effect  as  he  had 
done  in  the  former  reference  in  47  a,  that  '  a  man  upon  his  feoffment  or 
conveyance  cannot  reserve  to  him  parcel  of  the  annual  profits  themselves,  as 
to  reserve  the  vesture  or  herbage  of  the  land  or  the  like,  for  that  should  be 
repugnant  to  the  gi-ant,'  we  cannot  take  this  language  of  Lord  Coke  in  143  a, 
as  identifying  an  exception  and  a'  reservation. 

"  There  are,  however,  some  cases  reported,  where,  in  the  language  of  the 
court,  the  word  '  reserve '  is  treated  as  meaning  '  exception.'  as  in  Dyer, 
19  a,  PI.  110.  That,  however,  is  only  general  language;  and  it  does  not  make 
them  the  same  in  point  of  law.  In  the  veiy  late  case  of  Fancy  v.  Scott,  2 
Man.  &  Ry.  335,  the  defendant  pleaded  that  the  plaintiff  was  tenant  to  the 
defendant  of  the  close  in  which,  &c.,  subject  to  a  reservation  to  defendant 
of  all  pits  in  the  close,  with  liberty  to  carry  away  the  produce  of  the  pits; 
and  Mr.  Justice  Bayley  said  it  was  not  a  reservation,  but  an  exception,  and 
held  the  plea  bad;  and  the  counsel  for  the  defendant  did  not  further  press 
the  argument. 

"  It  may  be  said,  however,  that,  if  the  person  who  creates  the  power  u.ses 
the  word  '  reserving  '  in  such  a  way  as  to  make  an  exception  a  reservation, 
it  must  be  so  taken;  but  we  think  not  necessaril3\  Powers  in  many  respects 
are  construed  so  very  strictlj',  that  they  must  be  so  throughout. 

"  But,  besides,  it  is  not  necessarily  to  be  taken  that  what  relates  to  the 
wood  and  underground  produce  is  a  reservation ;  there  are  other  legal  reserva- 
tions, besides  rent,  to  satisfy  the  words  'rent  and  reservations; '  and  when 
the  testator,  in  the  lease  of  1756  mentions  wood  and  underground  produce, 
he  says  except  and  always  reserved  out  oj  this  present  demise  and  grant,  all. 
&c.;  and  therefore  if,  in  point  of  law,  the  matters  are  the  subject  of  excep- 
tion, they  must  be  applied  to  the  legal  term  used.  And  in  The  Earl  of 
Cardigan  v.  Armitage,  2  B.  &  C.  197,  where  Sir  Thomas  Danby  enfeoffed 
the  Earl  of  Sussex  of  certain  closes,  except  and  always  reserved  out  of  the 
said  feoffment  to  the  said  Sir  Thomas  all  the  coals  in  all  or  any  of  the  said 
lands,  together  with  free  liberty  to  sink  and  dig  pits,  &c.,  Mr.  Justice  Bayley, 
in  delivering  the  judgment  of  the  court  upon  the  pleadings,  says,  this  con- 
stituted an  exception;  and  he  states  the  distinction  between  an  exception 
and  a  reservation,  and  then  he  goes  on  to  point  out  the  effect  of  an  excep- 
tion upon  the  statement  in  the  pleadings. 

"  Upon  all  these  authorities,  we  are  of  opinion  that  what  is  said  as  to  the 
wood  and  underground  produce  is  not  a  reservation,  but  an  exception."  —  Per 
Lord  Denmax,  C.  J.,  in  Doe  d.  Douglas  v.  Lock,  2  A.  &  E.  705,  743-746 
(1835). 

"  It  is  to  be  observed  that  a  right  of  way  cannot,  in  strictness,  be  made 
the  subject  either  of  exception  or  reservation.  It  is  neither  parcel  of  the 
thing  granted,  nor  is  it  issuing  out  of  the  thing  granted,  the  former  being 
essential  to  an  exception,  and  the  latter  to  a  reservation.  A  right  of  way 
reserved  (using  that  word  in  a  somewhat  popular  sense)  to  a  lessor,  as  in 
the  present  case,  is,  in  strictness  of  law,  an  easement  newly  created  by  way 
of  a  grant  from  the  grantee  or  lessee,  in  the  same  manner  as  a  right  of  sport- 
ing or  fishing,  which  has  been  lately  much  considered  in  the  cases  of  Doe  d. 
Douglas  v.  Lock,  2  A.  &  E.  705,  and  Wickham  v.  Hawker,  7  M.  &  W.  63. 
It  is  not  indeed  .stated  in  this  case  that  the  lease  was  executed  by  the  les.see. 
which  would  be  essential  in  order  to  establish  the  easement  claimed  by  the 
lessors  as  in  the  nature  of  a  grant  from  the  lessee;  but  we  presume  that  in 
fact  the  deed  was,  according  to  the  ordinary  practice,  executed  by  both 
parties,  lessee  as  well  as  lessors."  —  Per  Tindal,  C.  J.,  in  Durham  R.  R.  Co. 
V.  Walker,  2  Q.  B.  940.  967. 

See  Dawson  v.  Western  Rd.  Co.,  107  Md.  70,  93. 


SECT.    Ill]  ASHCROFT    V.    EASTERN   R.    R.    CO.  541 

ASHCROFT  V.  EASTERN   R.   R.   CO. 
126  Mass.  196.    1879. 

Bill  in  equity,  filed  June  13,  1878,  alleging  that,  on  October  26, 
1837,  John  Lovejoj  conveyed  to  the  defendant  a  parcel  of  land  in 
Lynn,  over  which  its  railroad  has  been  located,  consisting  of  a  strip 
twenty-eight  feet  in  width;  that  said  parcel  has  ever  since  been  owned 
and  used  by  the  defendant ;  that,  by  the  terms  of  the  deed,  Lovejoy 
created  and  reserved,  for  the  benefit  of  his  adjoining  land,  an  ease- 
ment in  the  land,  namely,  the  right  to  receive  water  from  a  spring 
by  aqueduct  logs,  through  a  culvert  across  the  land  conveyed  to  the 
defendant,  on  to  the  adjoining  land  which  was  then  owned  by  Love- 
joy;  that  the  plaintiff  by  mesne  conveyances,  had  become  the  owner 
of  said  adjoining  laud  and  buildings  of  Lovejoy,  for  the  benefit  of 
which  the  easement  was  reserved,  which  easement  was  conveyed  with 
the  land;  that  Lovejoy  and  his  grantees,  including  the  plaintiff, 
have  used,  without  interruption  or  objection  on  the  part  of  the  de- 
fendant, the  culvert  and  aqueduct  for  more  than  twenty  years  prior 
to  the  acts  of  the  defendant  hereinafter  complained  of;  that  the 
premises  belonging  to  the  plaintiff  have  been  used  for  many  years  for 
morocco  and  tanning  business,  requiring  a  large  supply  of  pure 
water,  which,  prior  to  the  acts  hereinafter  complained  of,  has  always 
been  supplied  by  the  aqueduct  running  through  the  culvert  under 
the  railroad;  that  in  August,  1870,  the  defendant  caused  the  culvert, 
under  which  the  aqueduct  logs  were  laid,  to  be  filled  with  rocks  and 
other  obstructions,  the  weight  and  force  of  which  crushed  the  logs, 
so  that  the  water,  which  should  have  been  conducted  by  them  into 
and  upon  the  premises  of  the  plaintiff,  overflowed,  wasted  and  flooded 
said  premises,  and  caused  the  tenant  thereof  to  leave;  that  this  over- 
flow of  water  was  adjudged  by  the  Board  of  Health  of  Lynn  to  be  a 
public  nuisance,  in  consequence  of  which  the  plaintiff  was  obliged  to 
lay  a  drain  to  conduct  away  the  water  at  great  expense;  that  while 
these  obstructions  were  being  put  in,  and  since  then,  the  plaintiff 
frequently  protested  to  the  defendant  against  its  action,  and  has 
repeatedly  notified  the  defendant  of  the  interference  with  his  ease- 
ment and  injury  to  his  land,  and  has  constantly  demanded  of  it  the 
restoration  of  his  rights;  but  it  has  wholly  neglected  and  refused  to 
remove  the  obstructions  and  restore  his  rights ;  that,  in  consequence 
of  these  acts  of  the  defendant,  the  plaintiff  is  wholly  deprived  of  the 
use  and  enjoyment  of  the  aqueduct  and  the  water  therefrom,  and  has 
been  prevented  from  carrying  on  his  business;  that  the  defendant  is 
insolvent  and  unable  to  pay  its  debts  in  full,  and  all  of  its  property  is 
mortgaged  to  creditors  for  a  much  larger  sum  than  its  value,  although 
the  defendant  is  still  in  the  legal  possession  of  the  property,  and  it 
has  no  property  which  can  be  come  at  to  be  attached  or  taken  on  exe- 


542  ASHCROFT    V.    EASTERN   R.   R.    CO.  [CHAP.   VIII 

cution  in  an  action  at  law;  that  the  acts  of  the  defendant  are  an 
appropriation  of  a  privilege,  right  and  easement  appurtenant  to  the 
plaintiff's  land,  of  a  continnons  and  permanent  nature;  and  that 
the  plaintiff  has  not  a  plain,  adequate,  and  complete  remedy  at  law. 

The  prayer  of  the  bill  was  that  the  defendant  might  be  ordered  to 
remove  the  obstructions,  and  to  restore  the  aqueduct  to  its  usual  and 
former  condition;  that  it  might  be  decreed  to  pay  to  the  plaintiff  a 
sum  of  money  sufficient  to  compensate  him  for  the  damage  done ;  that 
it  might  be  perpetually  restrained  from  obstructing  or  in  any  way 
interfering  with  the  plaintiff's  aqueduct;  and  for  further  relief. 

The  defendant  filed  a  plea  alleging  that  the  reservation  in  the  deed 
of  John  Lovejoy  to  the  defendant,  dated  October  26,  1837,  w^as  in  the 
words  following,  and  not  otherwise :  "  Reserving  to  myself  the  right 
of  passing  and  repassing,  and  repairing  my  aqueduct  logs  forever, 
through  a  culvert  six  feet  wide  and  rising  in  height  to  the  superstruc- 
ture of  the  railroad,  to  be  built  and  kept  in  repair  by  said  company; 
Avhich  culvert  shall  cross  the  railroad  at  right  angles  with  the  south- 
easterly line  of  John  Alley,  3d's  land,  seventy-four  feet  west  of  the 
northeasterly  line  of  my  land,  measuring  on  the  centre  of  the  rail- 
road;" and  also  alleging  that  John  Lovejoy  died  on  September  12, 
1876. 

Hearing  before  Ames,  J.,  upon  the  bill  and  plea,  who  reserved  the 
question  of  the  sufficiency  of  the  plea  for  the  determination  of  the 
full  court. 

Morton,  J.  The  plaintiff's  right  to  maintain  this  suit  depends 
upon  the  construction  of  the  clause  in  the  deed  recited  in  the  de- 
fendant's plea. 

"We  are  of  opinion  that  this  clause  must  operate  as  a  reservation, 
or  by  way  of  implied  grant.  The  operation  of  an  exception  in  a  deed 
is  to  retain  in  the  grantor  some  portion  of  his  former  estate,  which 
by  the  exception  is  taken  out  of  or  excluded  from  the  grant;  and 
whatever  is  thus  excluded  remains  in  him  as  of  his  former  right  or 
title,  because  it  is  not  granted.  A  reservation  or  implied  grant  vests 
in  the  grantor  in  the  deed  some  new  right  or  interest  not  before  exist- 
ing in  him.  Shep.  Touchst.  80.  Stocl'hridge  Iron  Co.  v.  Hudson 
Iron  Co.,  107  Mass.  290. 

The  clause  we  are  considering  does  not  merely  reserve  to  Lovejoy 
a  right  of  way  and  of  maintaining  aqueduct  logs  through  the  land 
granted.  The  privilege  which  the  parties  intended  should  vest  in  him 
was  the  right  of  passing  and  repassing,  and  of  maintaining  his  aque- 
duct logs  through  a  culvert  to  be  built  and  kept  in  repair  by  the 
grantee.  The  provision  that  the  grantee  shall  build  and  keep  in  re- 
pair the  culvert  is  an  essential  part  of  the  grant,  and  clearly  indicates 
that  the  intention  of  the  parties  was  to  confer  upon  the  grantor  a 
new  right  not  previously  vested  in  him,  and  which,  therefore,  could 
not  be  the  subject  of  an  exception. 


SECT.    Ill]  DEE    V.    KING  543 

It  is  well  settled  that,  generally,  tlie  same  rules  of  construction 
apply  to  a  reservation  or  implied  grant  as  to  an  express  grant.  In 
this  case,  the  words  used  were,  ''  reserving  to  myself  the  right  of  pass- 
ing and  repassing,  and  repairing  my  aqueduct  logs  forever  through 
a  culvert."  This  gave  only  an  estate  for  life  to  Lovejoy.  To  create 
an  estate  of  inheritance  by  deed  to  an  individual,  the  land  must  be 
conveyed  to  the  grantee  and  his  heirs,  and  these  necessary  words  of 
limitation  cannot  be  supplied  by  other  words  of  perpetuity.  As 
stated  by  Wilde,  J.,  in  Curtis  v.  Gardner,  13  Met.  457,  "  a  grant  to 
a  man  to  have  and  to  hold  to  him  forever,  or  to  have  and  to  hold  to 
him  and  to  his  assigns  forever,  will  convey  only  an  estate  for  life." 
See  also  Dennis  v.  Wilson,  107  Mass.  591. 

It  is  not  necessary  to  decide  whether  the  easement  created  by  the 
reservation  was  appurtenant  to  the  remaining  land  of  Lovejoy.  As- 
suming it  to  have  been  so,  this  could  not  have  the  effect  to  extend  its 
duration.  Lovejoy  might  assign  it,  if  appurtenant,  by  a  deed  of  the 
remaining  land,  but  it  would  expire  with  his  life,  whether  assigned 
or  retained  by  him. 

It  follows  from  these  considerations,  that  this  bill  cannot  be  main- 
tained. Lovejoy  having  died  before  this  suit  was  commenced,  the 
easement  had  ceased  to  exist,  and  the  plaintiff"  is  not  entitled  to 
the  relief  prayed  for  in  the  bill.  The  defendant's  plea,  therefore,  is 
sufficient.  Bill  dismissed.^ 


DEE  V.  KING 
77  Vt.  230.    1905. 


Appeat.  in  Chancery.  Heard  on  master's  report  and  exceptions 
thereto  at  the  March  Term,  1904,  Franklin  County,  Start,  Chancel- 
lor.    Decree  dismissing  bill.     The  orator  appealed. 

This  case  has  been  once  before  in  the  Supreme  Court,  and  the  de- 
cree was  reversed  pro  forma  for  the  reason  stated  in  the  opinion  in 
tliis  case.  See  73  Vt.  375,  for  further  statement  of  the  facts 
involved. 

Watson,  J.  When  this  case  was  here  before  (73  Vt.  375)  the  de- 
cree was  reversed  pro  forma  and  the  cause  remanded  for  additional 

'  And  see  Kister  v.  Reexer,  98  Pa.  1. 

If  the  statute  allows  a  fee  simple  to  be  created  without  the  use  of  the 
word  "  heirs,"  a  perpetual  ea.^ement  may  be  "  reserved  "  without  employing 
it.  Ruhnke  v.  Aubert,  58  Oreg.  6;  Forde  v.  Libbey,  22  Wyo.  464.  See  Kar- 
rmdler  v.  Krotz,  18  Iowa  352.     Contra,  Ross  v.  McGec,  98  Md.  389. 

The  Massachusetts  decisions  are:  Bowcn  v.  Conner.  6  Cn^h.  132;  Dennis 
V.  WUson,  107  Mass.  591;  Bean  v.  French,  140  Mass.  229;  White  v.  A'.  F.  & 
N.  E.  Rd.  Co..  156  Mus8.  181;  Clatlin  v.  B.  A-  A.  Rd.  Co.,  157  Mass.  489; 
Hamlin  v.  N.  Y.  t£-  N.  E.  Rd.  Co.,  160  Mass.  459;  Baileii  v.  Agaivam  Bantc, 
190  Mass.  20;  Foster  v.  Smith,  211  Mass.  497;  Childs  v.  B.  &  M.  Rd.  Co., 
213  Mass.  91. 


544  DEE    V.    KING  [chap.   VIII 

findings  of  fact  by  the  special  master,  as  to  tlie  time  wlien,  with 
reference  to  March  16,  1882,  Jared  Dee  asked  and  obtained  permis- 
sion of  the  defendant  to  cross  his  three-acre  piece  of  hind  on  the  east 
side  of  the  Central  Vermont  Railroad.  On  the  hearing  before  the 
master  for  this  purpose,  the  orator  introduced  no  further  evidence. 
The  defendant  testified  in  his  own  behalf,  and  from  his  testimony 
the  fact  is  found  that  Jared  Dee  first  asked  and  obtained  of  the  de- 
fendant permission  to  cross  that  land  in  January,  1882.  The  orator 
seasonably  objected  and  excepted  to  the  defendant's  testifying  to  any 
conversation  between  him  and  Jared  Dee  on  this  point,  because 
Jared  Dee  was  dead. 

The  defendant  was  called  and  used  as  a  witness  by  the  orator  at  the 
first  hearing,  upon  the  question,  among  other  things,  whether  Jared 
Dee  passed  through  and  over  the  three-acre  piece,  his  habit  and 
custom  in  so  doing,  to  what  extent,  under  what  circumstances,  and  for 
what  purpose.  The  orator  made  the  defendant  a  general  witness 
upon  that  question,  and  he  thereby  waived  the  statutory  incompe- 
tency of  the  defendant  as  a  witness,  —  Paine  v.  McDowell,  71  Vt. 
28,  41  Atl.  1042;  Ainsivorth  v.  Stone,  73  Vt.  101,  50  Atl.  805,  —  and 
he  could  not  afterwards  complain  because  the  defendant  gave  testi- 
mony in  his  own  behalf  more  fully  upon  the  same  subject  matter. 

Jared  Dee  having  obtained  permission  of  the  defendant  to  cross  the 
three-acre  piece  within  fifteen  years  next  after  March  16,  1867,  the 
orator  can  have  no  prescriptive  way  over  it.  A  right  of  way  over 
this  land  is  neither  set  forth  nor  claimed  by  the  orator  in  his  bill; 
yet  in  one  aspect  of  the  case  whether  he  has  such  a  way  is  material. 

The  only  right  of  way  claimed  by  the  orator  over  the  defendant's 
land  so  far  as  appears  by  the  bill,  is  over  the  one-half-acre  piece  on 
the  west  side  of  the  Central  Vermont  Railroad,  as  reserved  by  Jared 
Dee  in  his  deed  dated  October  7,  1862,  conveying  that  land  to  Wil- 
liam W.  Pettingill.  In  that  deed  immediately  following  the  descrip- 
tion of  the  land  conveyed  is  the  clause  "  reserving  the  privilege  of  a 
pass  from  the  highway  past  the  house  to  the  railroad  in  my  usual 
place  of  crossing."  The  defendant  contends  that  these  words  are  only 
a  reservation  of  a  personal  privilege  to  Jared  Dee  which  could  not 
pass  to  his  heirs  or  assigns  because  no  words  of  inheritance  or  assign- 
ment were  used  in  connection  therewith;  while  the  orator  contends 
that  the  clause  has  the  force  of  an  exception,  and  that  the  servient 
estate  thereby  created  passed  to  the  subsequent  owners  of  the  domi- 
nant estate  without  such  words  of  limitation  being  used.  Much  de- 
pends upon  the  construction  given  in  this  regard,  in  the  disposition 
of  the  case.  Lord  Coke  says  that  "  reserving "  sometimes  has  the 
force  of  saving  or  excepting,  "  so  as  sometime  it  serveth  to  reserve  a 
new  thing,  viz.  a  rent,  and  sometime  to  except  part  of  the  thing  in 
esse  that  is  granted."  Co.  Litt.  143  a.  Sheppard  says  that  "  a  reser- 
vation is  a  clause  of  a  deed  whereby  the  feoffor,  donor,  lessor,  grantor. 


SECT.    Ill]  DEE    V.    KING  545 

etc.,  doth  reserve  some  new  thing  to  himself  out  of  that  which  he 
granted  before.  And  this  doth,  most  commonly,  and  properly,  suc- 
ceed the  tenendum,  .  .  .  This  part  of  the  deed  doth  differ  from  an 
exception,  which  is  ever  of  part  of  the  thing  granted,  and  of  a  thing 
in  esse  at  the  time,  but  this  is  of  a  thing  newly  created  or  reserved 
out  of  a  thing  demised  that  was  not  in  esse  before,  so  that  this  clause 
doth  always  reserve  that  which  was  not  before,  or  abridge  the  tenure 
of  that  which  was  before."  Shepp.  Toucli.  80.  Again  the  same 
author  says,  that  an  exception  clause  most  commonly  and  properly 
succeeds  the  setting  down  of  the  things  granted;  that  the  thing  ex- 
cepted is  exempted  and  does  not  pass  by  the  grant,  p.  77.  The  same 
principles  were  largely  laid  down  by  this  Court  in  Roberts  v.  Robert- 
son, 53  Yt.  690.  There  the  deed  given  by  the  plaintiff  contained 
a  specific  description  of  the  land  conveyed,  and  a  clause  "  reserving 
lots  .  .  .  32,  33,"  etc.  Under  this  clause  the  plaintiff  claimed  title 
to  the  two  lots  above  named.  The  court,  after  stating  the  offices  of 
an  exception  and  of  a  reservation  the  same  as  above,  said  these 
terms,  as  used  in  deeds,  are  often  treated  as  synonymous  and  that 
words  creating  an  exception  are  to  have  that  effect,  although  the  word 
reservation  is  used.  It  was  held  that  the  clause  should  be  construed 
as  an  exception. 

In  England  it  has  been  held  that  a  right  of  way  cannot  in  strictness 
be  made  the  subject  of  either  an  exception  or  a  reservation;  for  it  is 
neither  parcel  of  the  thing  granted,  an  essential  to  an  exception,  nor 
is  it  issuing  out  of  the  thing  granted,  an  essential  to  a  reservation. 
Doe  V.  Lock,  2  Ad.  &  E.  705;  Durham,  Etc.  R.  R.  Co.  v.  Walker, 
2  Q.  B.  945.  But  there,  as  in  this  country,  (/j/a^Z-easements  are  recog- 
nized in  law,  such  as  a  visible  and  reasonably  necessary  drain  or  way 
used  by  the  owner  of  land  over  one  portion  of  it  to  the  convenient 
enjoyment  of  another  portion,  and  there  has  never  been  any  separate 
ownership  of  the  qua^ i-dominant  and  the  gua^j-servient  tenements. 
As  such  easement,  a  drain  is  classed  as  continuous,  because  it  may  be 
used  continuously  without  the  intervention  of  man;  and  a  right  of 
way  as  non-continuous  because  to  its  use  the  act  of  man  is  essential 
at  each  time  of  enjoyment.  In  Barnes  v.  Loach  (1879),  4  Q.  B.  D. 
494,  it  was  said  regarding  such  easements  of  an  apparent  and  con- 
tinuous character,  that  if  the  owner  aliens  the  quasi-dominsint  part 
to  one  person  and  the  r/i/a.<f?-servient  to  another,  the  respective 
alienees,  in  the  absence  of  express  stipulation,  will  take  the  land 
burdened  or  benefited,  as  the  case  may  be,  by  the  qualities  which  the 
previous  owner  had  a  right  to  attach  to  them.  And  in  Brown  v. 
Alabaster  (1888),  37  Ch.  D.  490,  it  Avas  said  that  although  a  right 
of  way  by  an  artificially  formed  path  over  one  part  of  the  owner's 
land  for  the  benefit  of  the  other  portion,  could  not  be  brought  Avithin 
the  definition  of  a  continuous  easement,  it  might  be  governed  by  the 
same  rules  as  are  apparent  and  continuous  easements. 


546  DEE    V.    KING  [chap.   VIII 

Cases  involving  quasi-eQ.&QTCie\\is  have  been  before  this  Court.  In 
Harwood  v,  Benton  &  Jones,  32  Vt.  724,  the  owner  of  a  water  privi- 
lege, dam,  and  mill,  also  owned  land  surrounding  and  bordering  upon 
the  mill  pond  and  mill,  which  he  subjected  to  the  use  and  convenience 
of  the  mill  privilege  and  mills.  A  part  of  these  adjacent  lands  thus 
subjected  was  conveyed  without  any  stipulation  in  the  deed  that  any 
servient  condition  attached  thereto.  The  condition  of  the  estate  had 
been  continuous,  was  obvious,  and  of  a  character  showing  that  it  was 
designed  to  continue  as  it  had  been.  The  Court  said  this  was  a 
palpable  and  impressed  condition,  made  upon  the  property  by  the 
voluntary  act  of  the  owner.  It  was  held  that  without  any  stipulation 
in  the  deed  upon  that  subject,  the  law  was  that  the  grantee  took  the 
land  purchased  by  him,  in  that  impressed  condition,  with  a  continu- 
ance of  the  servitude  of  that  parcel  to  the  convenience  and  beneficial 
use  of  the  mill.  It  was  there  laid  down  as  an  unquestioned  proposi- 
tion that  "  upon  the  severance  of  a  heritage,  a  grant  will  be  implied 
of  all  those  continuous  and  apparent  easements  which  have  in  fact 
been  used  by  the  owner  during  the  unity,  though  they  have  had  no 
legal  existence  as  easements ;  "  and  that  the  doctrine  was  equally 
well  settled  that  the  law  will  imply  a  reservation  of  like  easements  in 
favor  of  the  part  of  the  inheritance  retained  by  the  grantor.  In 
Goodall  V.  Godfrey,  53  Vt.  219,  a  "  visible,  defined  way  in  use  for  the 
obvious  convenience  of  the  whole  building  "  was  in  question,  conse- 
quent on  a  division  of  the  property  among  the  representatives  of  the 
deceased  owner,  and  the  same  principles  of  law  were  applied.  And 
in  Willey,  Admx.  v.  Thwing,  68  Vt.  128,  34  Atl.  428,  applying  the 
same  doctrines,  a  right  of  way  was  upheld  under  an  implied 
reservation. 

In  this  country  it  is  commonly  held  that  a  way  may  be  the  subject 
of  a  reservation,  and  in  many  cases  courts  of  high  standing  have  hold 
that  it  may  properly  be  the  subject  of  an  exception  in  a  grant.  While 
it  is  true  that  an  owner  of  land  cannot  have  an  easement  in  his  own 
estate  in  fee,  he  may  as  before  seen  have  a  quasi-esisement  over  one 
portion  in  the  character  of  a  visible,  travelled  way  reasonably  neces- 
sary to  the  convenient  enjoyment  of  another  portion,  and  when  such 
a  way  exists,  there  would  seem  to  be  no  substantial  legal  reason  why 
it  may  not  be  treated  as  a  thing  in  being,  and  as  a  part  of  the  estate 
included  in  the  description  of  the  grant  be  made  an  exception  in  a 
deed  of  the  land  over  wdiich  the  way  is,  when  such  appears  to  have 
been  the  intention  of  the  parties.  That  this  is  the  principle  upon 
which  a  clause  reserving  a  way  is  construed  as  an  exception  appears 
from  Chappell  v.  N.  Y.,  N.  H.  &  E.  R.  R.  Co.,  62  Conn.  195,  which 
is  more  particularly  referred  to  later.  There  the  Court  said :  "  Then 
too  the  right  to  cross  was,  in  a  certain  sense,  a  right  existing  in  the 
grantors  at  the  date  of  the  deed.  It  was  a  part  of  their  full  dominion 
over  the  strip  about  to  be  conveyed  by  the  deed,  and  not  a  right  to  be, 


SECT.    Ill]  DEE    V.    KING  547 

in  effect,  conferred  upon  them  by  the  grantees.  It  was  something 
which  the  '  reservation '  in  effect  '  excepted  '  out  of  the  operation  of 
the  grant." 

The  distinction  between  a  reservation  and  an  exception  of  a  way  is 
best  understood  by  an  examination  of  cases  involving  clauses  very 
similar  to  the  one  here  under  consideration,  yet  so  unlike  as  to  require 
different  constructions  in  this  regard.  In  Ashcroft  v.  EaMern  R.  R. 
Co.,  126  Mass,  196,  30  Am.  Rep.  672,  the  clause  was  "  reserving  to 
myself  the  right  of  passing  and  re-passing,  and  repairing  my  aque- 
duct logs  forever,  through  a  culvert  ...  to  be  built  and  kept  in  re- 
pair by  said  company;  which  culvert  shall  cross  the  railroad  at  right 
angles,"  etc.  It  was  held  that  the  provision  that  the  grantee  should 
build  and  keep  in  repair  the  culvert  was  an  essential  part  of  the 
grant,  and  clearly  indicated  that  the  intention  of  the  parties  was  to 
confer  upon  the  grantor  a  new  right  not  before  vested  in  him,  which, 
therefore,  could  not  be  the  subject  of  an  exception.  In  Claflin  v. 
Bodon  &  Albany  R.  Co.,  157  Mass  489,  20  L.  R.  A.  638,  the  clause 
was  "  reserving  to  ourselves  the  right  of  a  passage  way  to  be  con- 
structed and  kept  in  repair  by  ourselves."  There  was  no  evidence  of 
an  existing  way  across  the  land.  It  was  held  to  be  a  reservation  and 
not  an  exception.  In  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  before 
cited,  John  W.  and  Benjamin  F.  Brown,  in  1851,  owned  a  piece  of 
land  in  iSIew  London  fronting  on  the  river  Thames  and  lying  between 
that  river  and  Bank  street.  On  the  river  front  was  a  wharf  and 
docks.  Between  the  wharf  and  Bank  street  was  about  one  and  one- 
It  alf  acres  used  by  the  Browns  in  carrying  on  a  coal  and  wharfage 
business.  The  wharf  was  valuable.  In  that  year  the  Browns  con- 
veyed, for  railroad  purposes,  a  strip  of  this  land,  twenty-five  feet 
wide,  running  through  the  land  and  separating  the  wharf  from  the 
land  lying  westerly  of  the  strij?  convej^ed,  and  rendering  it  inacces- 
sible except  by  crossing  the  strip.  This  right  of  crossing  was  indis- 
pensable to  the  Browns  and  all  who  might  thereafter  oavti  the  prem- 
ises then  owned  by  them.  The  deed  thus  conveying  this  strip  con- 
tained the  clause  "  And  we  reserve  to  ourselves  the  privilege  of  cross- 
ing and  recrossing  said  piece  of  land  described,  or  any  part  thereof 
within  said  bounds."  The  way  at  the  time  of  the  date  of  the  deed! 
was  an  existing  one  plainly  visible,  necessary,  and  in  almost  constant! 
use.  The  clause  was  construed  to  be  an  exception.  In  Bridgrr  v. 
Pierson,  45  N.  Y.  601,  the  defendant  conveyed  land  to  the  plaintiff 
and  immediately  following  the  description  the  deed  contained  the 
clause  "  reserving  always  a  right  of  way  as  now  used  on  the  west  side 
of  the  above  described  premises  .  .  .  from  the  public  higliAvay  to 
a  piece  of  land  now  owned  by  "  R.  It  was  held  to  be  an  exception. 
In  While  v.  N.  ¥.,  &  N.  E.  R.  R.  Co.,  156  Mass.  181,  the  action  was 
tort  for  the  obstruction  of  a  private  way  claimed  by  the  plaintiff 
over  the  location  of  the  defendant's  railroad,  under  a  clause  in  a  deed 


548  DEE    V.    KING  [chap.   VIII 

which  read  "  reserving  the  passway  at  grade  over  said  railroad  where 
now  made."  This  way  had  existed  as  a  defined  roadway  or  cart 
track,  and  had  been  used  in  passing  to  and  from  a  highway  to  and 
from  parts  of  the  lot  north  of  the  tracks  before  the  railroad  was 
located,  and  before  the  deed  referred  to  was  given.  The  clause  was 
held  to  be  an  exception.  These  are  but  a  few  of  the  many  decisions 
in  different  jurisdictions  which  might  be  referred  to  upon  this  ques- 
tion, but  more  are  unnecessary, 

The  language  of  the  clause  under  consideration  cannot  be  said  to 
be  unequivocal.  We  therefore  look  at  the  surrounding  circumstances 
existing  Avhen  the  deed  containing  it  was  made,  the  situation  of  the 
parties,  and  the  subject  matter  of  the  instrument;  and  in  the  light 
thereof  the  clause  should  be  construed  according  to  the  intent  of  the 
parties.  At  the  time  of  making  this  deed  Jared  Dee  was  the  owner 
of  land  on  the  opposite  side  of  the  railroad,  consisting  of  a  three- 
acre  piece  of  tillage  land,  and  a  hill  lot  adjoining  it  on  the  north, 
chiefly  valuable  for  its  sugar  works,  for  its  pasturage,  and  as  a  wood 
and  timber  lot.  The  last  named  lot  is  traversed  its  entire  length 
from  north  to  south  and  about  a  third  of  its  width  from  west  to  east 
by  a  considerable  hill,  more  or  less  ledgy  and  making  it  extremely 
inconvenient  to  cross  from  the  grantor's  own  land  north  of  the  Fair- 
banks land,  but  easily  reached  by  the  now  disputed  right  of  way 
across  the  one-half-acre  piece,  and  over  t^e  three-acre  piece  of  tillage 
land.  The  greater  portion  of  Jared  Dee's  sugar  orchard,  timber, 
and  w^ood  was  on  top  and  east  of  this  hill.  There  was  no  way  to  or 
out  of  the  hill  lot  except  over  the  hill  on  Jared  Dee's  own  land  west 
of  the  Fairbanks  land,  or  out  through  the  three-acre  piece,  and  the 
one-half-acre  piece  onto  the  public  highway  leading  westerly  to  Jared 
Dee's  house.  For  more  than  ten  years  next  prior  to  the  time  when 
Jared  Dee  gave  the  deed  to  Pettingill,  the  Dees  had  passed  over  the 
one-half -acre  piece  and  through  the  three-acre  piece  almost  exclusively 
for  all  purposes  whenever  they  went  to  or  from  the  hill  lot,  whether 
\vith  team,  on  foot,  or  in  any  other  manner,  except  when  they  got 
wood  on  the  west  side  of  the  lot  they  went  from  the  highway  across 
the  Fairbanks  farm  west  of  the  railroad,  thence  over  the  railroad 
at  the  "  middle  crossing  "  onto  the  hill  lot.  And  on  rare  occasions 
they  used  still  another  route  further  north  wholly  over  Dee's  land. 
It  appears  from  the  deed  itself  that  in  crossing  the  one-half-acre 
piece  they  had  a  particular  place  of  travelling  then  known  to  both 
the  grantor  and  the  grantee,  for  the  words  used  in  the  deed  describing 
it  are  "  from  the  highway  past  the  house  to  the  railroad  in  my  usual 
place  of  crossing.''^  Thus  showing  the  intention  of  the  parties  to  be 
that  the  grantor  should  retain  the  right  to  pass  through  this  land 
over  a  visible,  travelled  way  then  in  existence,  and  that  no  new  way 
was  thereby  being  created  for  his  benefit. 

Clearly  under  the  law  and  in  the  light  of  the  foregoing  circum- 


SECT.    Ill]  DEE    V.    KING  549 

stances,  the  clause  must  be  construed,  not  as  a  reservation,  but  as  an 
exception.  When  given  this  construction,  technical  words  of  limita- 
tion are  not  applicable,  for  the  part  excepted  remained  in  the  grantor 
as  of  his  former  title,  because  not  granted.  Cardigan  v.  Armitage, 
2  Barn.  &  C.  197;  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  before 
cited;  Winthrop  v.  Fairbanks,  41  Me.  307.  We  think  the  parties 
intended  that  by  this  provision  the  grantor  should  permanently  re- 
tain from  the  grant  for  the  benefit  of  his  land  east  of  the  railroad, 
the  way  over  the  one-half -acre  piece,  which  he  had  been  accustomed 
to  use  in  crossing  that  land  to  and  from  the  land  first  named.  The 
way,  thus  retained  became  an  easement  over  the  half-acre  piece  of 
land  and  an  appurtenant  to  the  other  land;  and  with  the  latter  it 
would  pass  by  descent  or  assignment. 

Subsequent  to  conveying  the  one-half-acre  lot  to  Pettingill,  Jared 
Dee  sold  and  conveyed  the  three-acre  piece,  which  through  mesne 
conveyances  has  become  the  property  of  the  defendant.  But  this 
cannot  affect  the  easement  as  an  appurtenant  to  the  hill  lot;  for  a 
right  of  way  appurtenant  to  land  attaches  to  every  part  of  it,  even 
though  it  may  go  into  the  possession  of  several  persons.  Lansing  v. 
Wiswall,  5  Denio,  213;  Underivood  v.  Carney,  1  Cush.  285. 

The  master  finds  that  if  upon  the  facts  reported  the  orator  has  a 
right  of  way  or  a  right  to  cross  over  defendant's  land  to  the  hill  lot, 
then  the  orator  has  suffered  damage  by  reason  of  the  acts  of  the 
defendant  complained  of  in  the  bill,  to  the  amount  of  sixty-five  dol- 
lars. The  orator  can  recover  only  such  damages  as  he  has  suffered 
by  acts  of  the  defendant  in  obstructing  the  way  across  the  one-half- 
acre  piece,  considering  the  fact  that  the  orator  had  no  right  of  way 
over  or  right  to  cross  the  defendant's  three-acre  piece.  Upon  this 
basis  the  damages  have  not  been  assessed.  The  report  should  there- 
fore be  recommitted  for  that  purpose,  and  upon  such  damages  being 
reported,  a  decree  should  be  rendered  that  the  injunction  be  made 
perpetual,  and  that  the  defendant  pay  to  the  orator  the  damages 
found  with  costs  in  this  Court.  The  costs  in  the  court  below  should 
be  there  determined. 

The  decree  dismissing  the  hill  ivith  costs  to  the  defendant  is  re-i 
versed  and  cause  remanded  with  mandate.^ 

1  See  Nerv  Haven  v.  Hntchkiss,  77  Conn.  168;  Ring  v.  Walker,  87  Me.  550;  ' 
Bridger  v.  Pierson,  45  N.  Y.  601. 

In  the  following  cases  the  easement  created  in  the  grantor  by  the  convey- 
ance was.  even  in  the  absence  of  the  words  "  heirs  "  or  "  assigns."  held  not 
personal  to  him.  Webb  v.  Jones,  163  Ala.  637;  Chappell  v.  N.  Y.  N.  H.  & 
11.  R.  R.  Co.,  62  Conn.  195;  Kuerken  v.  Voltz.  110  111.  264;  Tcachoiit  v. 
Caprfal  Lodge,  128  Iowa  380;  PJngel  v.  Ayer,  85  Me.  448;  Lathrop  v.  Eisner, 
93  Mich.  .'i99;  Emer.wn  v.  Mooney,  .50  N.  H.  315;  Borst  v.  Empic,  1  Seld. 
(N.  Y.)  33;  Smith  v.  Jones,  86  Vt.  258. 


550  HAVERHILL   SAVINGS   BANK    V.    GRIFFIN       [CHAP.    VIII 

HAVERHILL  SAVI:N^GS  BANK  v.  GRIFFIN" 
184  Mass.  419.    1903. 

Bill  in  equity,  filed  August  17,  1901,  to  restrain  the  defendant 
from  using  and  maintaining  a  drain  from  certain  land  on  the  east 
side  of  Auburn  Street,  in  Haverhill,  owned  by  the  defendant,  through 
land  on  the  south  side  of  Sixth  Avenue  in  that  city  owned  by  the 
plaintiff,  and  praying  that  the  plaintiff  be  authorized  to  close  the 
portion  of  the  drain  upon  its  land. 

In  the  Superior  Court  Stevens,  J.  made  a  decree  granting  the  relief 
prayed  for;  and  the  defendant  appealed.  At  the  request  of  the  de- 
fendant the  judge  reported  the  material  facts  found  by  him,  in 
accordance  with  R.  L.  c.  159,  §  23. 

The  report  was  in  substance  as  follows :  The  defendant  is  the  owner 
of  the  land  described  as  hers  in  the  bill,  bounded  on  the  north  by  the 
land  of  the  plaintiff  also  described  in  the  bill.  Both  parcels  of  land 
were  owned  on  and  before  November,  1885,  by  one  Algernon  P. 
Nichols,  who  had  died  before  the  filing  of  the  bill.  The  land  owned 
by  the  defendant  was  conveyed  to  her  by  Nichols  by  a  warranty  deed 
in  common  form  dated  November  4,  1885.  The  land  owned  by  the 
plaintiff  was  conveyed  to  one  Warren  Hoyt  by  Nichols,  by  a  warranty 
deed  in  common  form  dated  July  12,  1886.  In  this  deed  the  plain- 
tiff's land  was  described  as  bounded  on  the  south  by  land  of  Caroline 
Griffin  about  one  hundred  and  seven  feet  more  or  less,  and  contained 
the  following  clause :  "And  reserving  to  the  lot  next  southerly  owned 
by  Griffin  the  right  to  enter  a  drain  into  a  private  sewer  now  on  said 
land."  The  plaintiff  acquired  its  title  through  a  mortgage  given  by 
Hoyt  to  the  plaintiff  and  foreclosed  by  the  plaintiff.  The  mortgage 
did  not  contain  any  words  relating  to  the  drain.  After  the  convey- 
ance to  the  defendant,  a  drain  was  constructed  by  her  from  the  lot 
owned  by  her  into  and  through  the  Nichols  land,  afterwards  conveyed 
to  Hoyt.  This  drain  connected  with  the  sewer  on  Hoyt's  land,  and 
from  the  autumn  of  1885  was  in  continuous  use  draining  the  de- 
fendant's lot. 

The  deed  from  Nichols  to  Hoyt  containing  the  clause  above  quoted 
was  as  follows,  omitting  the  portion  after  the  habendum  clause  which 
contained  the  ordinary  covenants  of  a  warranty  deed  : 

"  Know  all  men  by  these  presents  that  I,  Algernon  P.  Nichols  of 
Haverhill  in  the  County  of  Essex  and  Commonwealth  of  Massachu- 
setts, in  consideration  of  two  thousand  dollars  paid  by  "Warren  Hoyt 
of  said  Haverhill,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  give,  grant,  bargain,  sell,  and  convey  unto  the  said  "Warren 
Hoyt  a  certain  parcel  of  land  in  said  Haverhill  on  the  southerly  side 
of  Sixth  street  and  bounded  on  the  North  bv  said  St.  one  hundred 


SECT,    III]         HAVERHILL    SAVINGS   BANK    V.    GRIFFIN  "  551 

and  ten  feet  more  or  less,  on  the  east  by  land  of  the  Children's  Aid 
Society,  about  one  hundred  feet  more  or  less,  on  the  south  by  land 
land  of  Caroline  Griffin  about  one  hundred  and  seven  feet  more  or 
less,  and  on  the  West  by  Auburn  street  about  one  hundred  feet. 
Saving  and  reserving  nevertheless  to  myself  and  my  heirs  and  assigns 
forever  for  the  use  of  said  Children's  Aid  Society  a  right  to  pass 
and  repass  upon  and  over  a  strip  of  land  four  feet  (4  ft.)  wide  and 
seventy-five  feet  long,  extending  southerly  from  Sixth  St.  and  next 
to  land  of  said  Society,  so  as  to  make  a  passage  way  for  the  exclusive 
benefit  —  the  adjoining  estates  twelve  feet  wide  including  the  eight 
feet  in  width  which  I  reserved  for  such  use  in  my  deed  to  said 
Society,  and  reserving  to  the  lot  next  southerly  owned  by  Griffin  the 
right  to  enter  a  drain  into  a  private  sewer  now  on  said  land.  To 
have  and  to  hold  the  granted  premises  with  all  the  privileges  and 
appurtenances  thereto  belonging  to  the  said  Hoyt  and  his  heirs  and 
assigns  to  their  own  use  and  behoof  forever." 

Braley,  J.  At  the  time  the  defendant  obtained  title  to  her  land 
the  drain  was  not  in  existence  and  the  deed  under  which  she  holds  is 
silent  as  to  any  right  to  lay  and  maintain  such  a  drain  through  the 
land  of  the  plaintiff.  Neither  does  it  appear  that  this  alleged  right 
whereby  the  defendant  would  be  entitled  to  connect  her  premises 
with  the  public  sewer,  can  be  said  to  arise  by  implication.  See  in 
this  connection  Bumstead  v.  Cooh,  169  Mass.  410. 

The  case  falls  within  the  well  recognized  general  rule  that  where  an 
easement  is  not  set  out  in  the  instrument  under  which  the  party 
claiming  the  privilege  holds  title,  it  must  be  shoAvn  to  be  actually  in 
existence  and  connected  with  the  estate  conveyed  in  order  to  pass  as 
appurtenant  by  implication.  PhUhricl:  v.  Ewing,  97  Mass.  133; 
Bass  V.  Edwards,  126  Mass.  445,  449. 

In  order  therefore  to  maintain  her  claim  she  is  necessarily  obliged 
to  rely  on  the  clause  in  the  deed  to  the  plaintiff's  grantor  which  is  in 
these  words,  "  and  reserving  to  the  lot  next  southerly  owned  by 
Griffin  the  right  to  enter  a  drain  into  a  private  sewer  now  on  said 
land,"  and  the  rights  of  the  parties  must  be  determined  on  the  con- 
struction to  be  given  to  this  clause. 

At  the  date  of  this  deed  so  far  as  the  facts  appear  by  the  record  no 
such  right  had  been  granted  to  or  prescriptively  acquired  by  the  de- 
fendant, and  which  might  be  preserved  for  her  use  by  the  language 
used,  on  the  ground  that  thereby  an  exception  was  created  and  hence 
the  casement  claimed  was  excepted  from  the  grant.  But  they  must 
be  construed  as  an  attempt  to  vest  in  the  grantor  a  new  interest  or 
right  that  did  not  before  exist  and  therefore  constitute  a  reservation 
rather  than  an  exception.  Wood  v.  Boyd,  145  Mass.  176;  ^yh^te  v. 
New  York  &  New  Eiu/land  Railroad,  156  Mass.  181. 

As  the  defendant  was  not  a  party  but  a  stranger  to  the  deed  she 
could  gain  no  rights  under  the  reservation  which  enured  solely  to 


552  HAVERHILL   SAVINGS   BANK   V.   GRIFFIN       [CHAP.   VIII 

tlie  grantor,  and  for  this  reason  she  did  not  acquire  an  easement 
under  it.    Murphy  v.  Lee,  144  Mass.  371,  374. 

It  follows  that  the  decree  entered  in  the  Superior  Court  was  right 
and  should  be  affirmed.  Decree  affirmed.^ 


NOTE  ON  HABENDUM 

"  It  was  a  well  settled  common-law  rule  of  long  standing  that  if  the 
premises  and  habendum  of  a  deed  contain  different  express  limitations  of 
the  estate  which  are  repugnant  to  each  other,  the  construction  which  is  most 
beneficial  to  the  grantee  will  be  adopted.  Pursuant  to  this  rule  the  habendum 
where  such  repugnance  occurs  may  enlarge  an  estate  expressly  contained  in 
the  premises,  but  may  not  abridge  or  make  void  any  such  estate.  The 
clearest  case  for  the  application  of  this  rule  seems  to  have  been  where  the 
premises  contained  an  express  grant  of  a  fee  simple  by  the  use  of  the  words 
'  to  the  grantee  and  his  heirs,'  while  the  habendum  was  '  to  the  grantee  for 
life '  or  for  a  term  of  years.  In  such  a  case  the  grantee  took  the  fee.  From 
the  English  writers  and  cases  it  would  appear  that  this  rule  was  one  of 
marked  rigidity.  If  the  premises  expresslj'  designated  the  fee  and  the  haben- 
dum a  life  estate,  no  extended  argument  from  the  surrounding  circumstances 
that  the  grantor  meant  a  life  estate  would  have  been  effective  to  prevent 
the  creation  of  the  fee.  As  Challis  states  it:  'The  habendum  cannot  abridge 
any  estate  contained  in  the  premises,  unless  svich  estate  either  is  not  ex- 
pressly contained,  or  else  is  not  capable  of  taking  effect.'  This  he  shows 
is  the  result  of  the  authorities.  The  same  rule  has  often  been  referred  to  by 
our  [Illinois]  Supreme  Court."  Kales,  Estates  and  Future  Interests,  2d  ed., 
§  178. 

And  see  Anon.,  Moore  43  pi.  133;  Dowse's  Case,  Cro.  El.  25;  Windsmore  . 
V.  Hubbard,  Cro.  El.  58;  Kirkman  and  Reignold's  Case,  2  Leon.  1;  Altham's 
Case,  8  Co.  148  a,  154  b;  Turnman  v.  Cooper,  Cro.  Jac.  476;  Goodtitle  d. 
Dodwell  V.  Gibbs,  5  B.  &  C.  709;  Doe  d.  Ti7nmis  v.  Steele,  4  Q.  B.  663;  Co. 
Lit.  21  a,  299  a;  Elphinstone,  Interp.  of  Deeds,  C.  14,  Rule  66;  Challis,  Real 
Prop.,  3d  ed.,  411  et  seq;  Dickson  v.  Van  Hoose,  157  Ala.  459;  Y eager  v. 
Famsworth,  163  Iowa  537;  Glenn  v.  Gross,  185  Iowa  546;  Union  Water 
Power  Co.  v.  Lewiston,  101  Me.  564,  579;  Dana  v.  Smith,  114  Maine  262; 
Putnam  v.  Pere  Marquette  R.  Co.,  174  Mich.  246;  Jones  v^  Whichard,  163 
N.  C.  241;  Teague  v.  Sowder,  121  Tenn.  132;  Pack  v.  Whitak^r,  110  Va.  122; 
Culpeper  Bank  v.  Wrenn,  115  Va.  55;  Goodman  v.  Teljer,  230  Mass.  157; 
Hafner  v.  Irwin,  4  Dev.  &  B.  (N.  C.)  433;  Tijler  v.  Moore,  42  Pa.  374; 
Bennett  v.  Bennett,  93  Vt.  316.  Compare  Kales,  Estates  and  Future  Inter- 
ests, 2d  ed.,  §§  179-182,  where  it  is  said  that  tlie  common  law  rule  has 
often  not  been  followed  in  this  country. 

1  Compare  Beinlein  v.  Johns,  102  Ky.  570;  Tuttle  v.  Walker,  46  Me.  280; 
Herbert  v.  Pue,  72  Md.  307;  Martin  v.  Cook,  102  Mich.  267;  Whitelaw  v. 
Rodney,  212  Mo.  540;  Litchfield  v.  Boogher,  238  Mo.  472;  Petition  of  Young, 
11  R.  I.  636;  Bartlett  v.  Barrows,  22  R.  I.  642. 


CHAPTEE   IX 

COVENANTS  FOR  TITLE  i 

PRELIMINARY  NOTE  ON  THE  USUAL  COVENANTS  2 

Seisin;  Right  to  Convey.  —  Not  satisfied  by  tortious  possession.  2  Tiffany, 
Real  Prop.,  2d  ed.,  §  450.  But  see  Wilson  v.  Widenham,  51  Me.  566;  Marston 
V.  Hobbs,  2  Mass.  433;  Raymond  v.  Raymond,  10  Cush.  (Mass.)  134;  Stam- 
baugh  v.  Smith,  23  Ohio  St.  584.    Compare  Fames  v.  Armstrong,  146  N.  C.  1. 

Broken  at  once,  if  at  all.  Simons  v.  Diamond  Match  Co.,  159  Mich.  241, 
248;  Hilliker  v.  Ruegcr,  228  N.  Y.  11;  Pridgen  v.  Long,  177  N.  C.  189.  Com- 
pare Kuntzman  v.  Smith,  77  N.  J.  Eq.  30. 

Damages  are  usually  amount  of  consideration  and  interest  from  time  of 
breach.  Mather  v.  Stokely,  218  F.  R.  764;  Wilson  v.  Forbes,  2  Dev.  (N.  C.) 
30,  39.  Compare  Seyjricd  v.  Knobland,  44  Colo.  86;  Lloyd  v.  Sandusky,  203 
111.  621;  Crosby  v.  Evans,  219  S.  W.  (Mo.)  948;  Pridgen  v.  Long,  177  N.  C. 
189,  194;  Curtis  v.  Brannon,  98  Tenn.  153. 

Incumbr.\nces.  —  A  covenant  "that  the  premises  are  free  from  incum- 
brances" is  broken  at  once,  if  at  all.  Mixon  v.  Burleson,  203  Ala.  84;  Musial 
V.  Kudlik,  87  Conn.  164.  Compare  Unitarian  Society  v.  Trust  Co.,  102  Iowa 
389.    But  see  Estate  oj  Hamlin.  133  Wis.  140.     , 

As  to  public  highways  a^  incumbrances,  see  cases  collected  in  Schwartz 
V.  Black,  131  Tenn.  360.  365. 

Damages.  For  an  incumbrance  such  as  a  mortgage,  nominal  till  paid 
off.  Hasselbusch  v.  Mohmking,  76  N.  J.  L.  691;  Smith  v.  Wahl.  88  N.  J.  L. 
623;  International  Development  Co.  v.  Clemans,  59  Wash.  398.  Then  the 
amount  paid  to  discharge  the  same.  Boice  v.  Coffeen,  158  Iowa  705,  712. 
See  Hartman  v.  Stoll,  205  Mich.  378;  Fishel  v.  Brouni,  145  N.  C.  71,  80. 
For  an  incumbrance  such  as  an  easement,  the  diminished  value  of  the 
premises.  Smith  v.  White,  71  W.  Va.  639;  Gadow  v.  Hunholz,  160  Wis.  293. 
See  Eraser  v.  Bentel,  161  Cal.  390;  Schwartz  v.  Black,  131  Tenn.  360,  where 
the  easement  benefited  the  premises  granted.  As  to  special  damage,  see 
Musial  V.  Kudlik,  87  Conn.  164. 

Further  Assurance.  —  This  covenant  is  rarely  used  in  the  United  States. 
Rawle,  Covenants  for  Title,  5th  ed.,  C.  VII,  and  §§  194,  195.  See  Werner 
V.  Wheeler,  142  App.  Div.  (N.  Y.)  358,  368. 

Quiet  En.ioyment.  —  The  usual  covenant  in  leases.  Broken  only  on 
eviction.     See  Rawle,  Covenants  for  Title,  5th  ed.,  C.  VI;   Warranty,  injra. 

Damages.    See  Warranty,  infra,  and  3  Williston,  Contracts,  §  1404. 

W.-vRR.ANTY.  —  Broken  when  there  is  damage  to  covenantee.  The  usual 
breach  is  eviction  by  paramount  title.  Musgrove  v.  Cordova  Coal  Co.,  191 
Ala.  419;  Smith  v.  Wahl,  88  N.  J.  L.  623.  But  suiTender  to  such  title  adversely 
asserted,  HanviUon  v.  Cutis,  4  Mass.  349;  Herbert  v.  Handy,  29  R.  I.  543, 
548;  the  buying  in  of  it,  Joyncr  v.  Smith,  132  Ga.  779.  Loomi,s  v.  Bedel, 
11  N.  H.  74,  Pee  Dee  Naval  Stores  Co.  v.  Hamer,  92  S.  C.  423  (compare 
Dyer  V.  Britton,  53  Miss  270)  ;  or  failure  to  obtain  possession  by  reason 
of  the  prior  occupancy  of  a  paramoimt  owner.  Hunt  v.  Hay,  214  N.  Y.  478, 

1  See  Rawle,  Covenants  for  Title,  5th  ed.  The  only  matter  with  refer- 
ence to  covenants  for  title  treated  in  the  text  is  their  running  with  the  land. 

-  Many  recent  cases  are  collected  in  2  Tiffany,  Real  Prop.,  2d  ed.,  §§  449- 
455. 

553 


554  COVENANTS   FOR   TITLE  [CHAP.    IX 

involves  a  breach.  Compare  Copcland  v.  McAdory,  100  Ala.  553  (public 
way) ;  Crawford  County  Bank  v.  Baker,  95  Ark.  438  (title  in  the  United 
States);  Burke  v.  Trahue,  137  Ky.  580  (public  wharf);  Walker  v.  Robinson, 
163  Ky.  618  (covenantor  insolvent) ;  Harrington  v.  Bean,  89  Me.  470  (private 
easement) ;  Sandum  v.  Johnson,  122  Minn,  (public  way) ;  Eves  v.  Curtiss, 
98  Wash.  367  (no  consideration  given  by  grantee) ;  McDonald  v.  Ward,  99 
Wash.  354  (right  of  way  of  railroad). 

In  Biwcr  v.  Martin,  294  111.  488,  A  by  deed  with  covenant  of  warranty 
created  in  land  a  life  estate  in  himself,  remainder  to  his  son  B  for  life, 
remainder  to  his  son's  widow  for  life,  remainder  to  B's  descendants  surviving 
B  in  fee.  X  acquired  the  life  estates,  and  Y  the  reversion  of  A.  Y  then 
transferred  the  reversion  to  X  with  the  expressed  intention  of  destroying  by 
merger  the  contingent  remainder  in  fee.  Held,  that  Y  was  estopped  by  the 
covenant  of  warranty  in  the  original  deed  of  A,. his  predecessor  in  title,  from 
destroying  the  contingent  remainder.  See  34  Harv.  L.  Rev.  430,  518;  15 
111.  L.  Rev.  583,  586. 

If  the  covenantee  gives  notice  of  suit  brought  against  him  by  the  owner 
of  the  paramount  title,  and  requests  the  covenantor  to  defend  it,  he  is  re- 
lieved from  being  obliged  afterward  to  prove  the  validity  of  the  adverse 
claim.  Taylor  v.  Allen,  131  Ga.  416;  Ballou  v.  Clark.  187  Iowa  496;  Chamber- 
lain V.  Preble,  11  All.  (Mass.)  370;  Estep  v.  Bailey,  94  Oreg.  59;  Farwell  v. 
Bean,  82  Vt.  172;  Morgan  v.  Haley,  107  Va.  331.  Compare  Rennie  v.  Gibson, 
75  Okla.  282.  Form  of  notice.  Mason  v.  Kellogg,  38  Mich.  132;  Miner  v. 
Clark,   15  Wend.   (N.  Y.)    425. 

Damages.  Generally  consideration  price,  or  in  case  of  breach  of  the  cove- 
nant as  to  part  of  the  land  only,  a  proportional  part  of  such  price,  with  m- 
terest.  Brawley  v.  Copelin,  106  Ark.  256;  Eaton  v.  Hopkins,  71  Fla.  615; 
Yazoo  Rd.  Co.  v.  Banister,  89  Miss.  808;  Merchant's  National  Bank  v.  Otero, 
24  N.  M.  598;  Campbell  v.  Shaw,  170  N.  C.  186;  Mengel  Box  Co.  v.  Ferguson, 
124  Tenn.  433.  Compare  Bass  v.  Starnes,  108  Ark.  357;  Mayo  v.  Maxwell, 
140  Ark.  84;  Parker  v.  Cramton,  143  Ga.  421;  Barker  v.  Denning,  91  Kan. 
485;  Beidel  v.  Am.  Machine  Co.,  144  Ky.  57;  Wade  v.  Barlow,  99  Miss.  33; 
Allen  V.  Miller,  99  Miss.  75;  Winn  v.  Taylor,  98  Oreg.  556.  Although  the 
rule  in  some  of  the  New  England  States  is  to  the  contrary,  by  the  weight 
of  authority  increase  in  the  value  of  the  land  by  improvements  or  othenvise 
is  disregarded.  2  Tiffany,  Real  Prop.,  2d  ed.,  p.  1709.  Right  to  interest  in 
relation  to  covenantee's  liability  to  paramount  owner  for  mesne  profits.  2 
Tiffany,  Real  Prop.,  2d  ed.,  p.  1713.  The  covenantee  is  entitled  to  expenses 
including  attorney's  fee  incurred  in  defending  a  suit  by  the  true  owner,  if 
he  gives  notice  to  the  covenantor  of  the  proceeding.  Beach  v.  Nordrnan,  90 
Ark.  59;  Ballou  v.  Clark,  187  Iowa  496;  Helton  v.  Asher,  135  Ky.  751;  Scott 
V.  Scott,  183  Ky.  604;  Olmstead  v.  Rawson,  188  N.  Y.  517;  Jones  v.  Balsley, 
154  N.  C.  61;  Ellis  v.  Abbott,  69  Oreg.  234.  Expenses  were  allowed,  al- 
though it  did  not  appear  that  notice  had  been  given  in  Madden  v.  Caldwell 
Land  Co.,  16  Idaho  59,  and  in  Solberg  v.  Robinson,  34  S.  D.  55.  Attorney's 
fee  was  not  permitted  to  be  recovered,  because  of  failure  of  covenantee  to 
notify  covenantor  of  suit  by  owner  of  paramount  title  in  Smith  v.  Boynton 
Co.,  131  Ark.  22.  See  Jeter  v.  Glenn,  9  Rich.  L.  (S.  C.)  374,  380;  Turner  v. 
Miller,  42  Tex.  418. 

That  the  grantee  in  a  conveyance  with  covenants  knows  of  a  defect  in  the 
title  at  the  time  of  the  grant  is  held  to  be  immaterial.  Mackintosh  v. 
Stewart,  181  Ala.  328;  Ericksen  v.  Whitescarver,  57  Colo.  409;  Newmyer  v. 
Rousch,  21  Idaho  106;  Doyle  v.  Emerson.  145  Iowa  358;  Cornelius  v.  Kin- 
nard,  157  Ky.  50;  Callanan  v.  Kecnan,  224  N.  Y.  503;  Joiner  v.  Ardmore 
Trust  Co.,  33  Okla.  266;  Sanders  v.  Boynton.  112  S.  C.  56;  O'Connor  v.  Enos, 
56  Wash.  448.  Compare  Snadon  v.  Salmon,  135  Ky.  47;  Eames  v.  Armstrong, 
146  N.  C.  1. 


BOOTH    V.    STARR   AND   OTHERS  555 

A.     In  General 
MIDDLEMORE  v.  GOODALE 

Cro.  Car.  503.     1639. 

Covenant.  Whereas  the  defendant  by  indenture  enfeoffed  J.  S.  of 
such  lands,  and  covenanted  for  himself  and  his  heirs  with  the  feoffee, 
his  heirs,  and  assigns,  to  make  further  assurance  upon  request ;  which 
lands  J.  S.  conveyed  to  the  plaintiff,  who  brings  this  action,  because 
the  defendant  did  not  levy  a  fine  upon  the  plaintiff's  request. 

The  defendant  pleaded  release  from  the  said  J.  S.  with  whom  the 
first  covenant  was  made,  and  it  was  dated  after  the  commencement  of 
this  suit;  and  thereupon 

The  plaintiff  demurred. 

And  all  the  court  agreed,  that  the  covenant  goes  with  the  land,  and 
that  the  assignee  at  the  common  law,  or  at  leastwise  by  the  Statute, 
shall  have  the  benefit  thereof. 

Secondly,  they  held,  that  although  the  breach  was  in  the  time  of 
the  assignee,  yet  if  the  release  had  been  by  the  covenantee  (who  is  a 
party  to  the  deed,  and  from  whom  the  plaintiff  derives)  before  any 
breach,  or  before  the  suit  commenced,  it  had  been  a  good  bar  to  the 
assignee  from  bringing  this  writ  of  covenant.  But  the  breach  of  the 
covenant  being  in  the  time  of  the  assignee,  for  not  levying  a  fine,  and 
the  action  brought  by  him,  and  so  attached  in  his  person,  the  cove- 
nantee cannot  release  this  action  wherein  the  assignee  is  interested. 
Whereupon  rule  was  given,  that  judgment  should  be  entered  for  the 
plaintiff,  unless  cause  was  shown  to  the  contrary  by  such  a  day.^ 


BOOTH  V.  STARR  and  Others 
1  Conn.  244.    1814. 

This  was  a  bill  in  chancery,  brought  to  the  Superior  Court  in  Fair- 
field County;  the  facts  stated  in  the  bill  and  found  by  the  court,  were 
these.  John  Booth,  in  1705,  conveyed  a  lot  of  land  in  Hudson  to 
Stephen  Booth,  the  plaintiff,  with  the  usual  covenants  of  warranty 
and  seisin.  In  1802,  the  plaintiff  conveyed  the  premises  to  one 
McKinstry;  McKinstry  afterwards  conveyed  to  one  Seymour;  he 
conveyed  to  Thomas  Williams;  and  he  conveyed  to  Elisha  Williams, 
Esq. ;  there  being  in  each  of  the  deeds  the  same  covenants  as  in  the 
deed  first  mentioned.  At  the  time  John  Booth  conveyed  the  prem- 
ises, he  was  not  the  owner  thereof  in  fee,  but  the  title  was  in  one 

1  See  Crooker  v.  Jewell,  29  Me.  527;  Littlcfield  v.  Getchdl  32  Me.  390; 
White  V.  Whitney,  3  Met.  (Mass.)  81,  83;  Chnse  v.  Weston,  12  N.  H.  413; 
Susquehanna  Coal  Co.  v.  Quirk,  61  Pa.  328,  339. 


556  BOOTH    V.    STARR   AND   OTHERS  [CHAP.    IX 

Lucy  Starr,  who  has  since  eiitorod  and  evicted  tlic  last  grantee;  but 
the  plaintiff  has  not  been  damnified.  The  respondents  are  the  ad- 
ministrators of  the  estate  and  the  heir  at  law,  of  John  Booth,  now 
deceased,  and  have  his  effects  in  their  hands.^  Upon  these  facts  the 
respondents  contended,  that  the  plaintiff  was  not  entitled  to  recover. 
But  the  court  decided  otherwise,  and  decreed  the  payment  of  the 
sum  of  2340  dollars  to  the  plaintiff,  as  damages  sustained  by  him 
by  reason  of  the  aforesaid  brea'ch  of  covenant. 

The  respondents  moved  for  a  new  trial,  on  the  ground  that  the  court 
mistook  the  law  in  making  such  decree.  The  question  of  law  arising 
on  the  motion  was  reserved  for  the  consideration  of  all  the  judges. 

Swift,  J.  The  question  is,  whether  in  the  case  of  a  covenant  of 
warranty  annexed  to  lands,  an  intermediate  covenantee  can  maintain 
an  action  against  a  prior  covenantor,  without  having  been  sued  by,  or 
satisfied  the  damages  to,  the  last  covenantee,  who  has  been  evicted. 

A  covenant  real  is  annexed  to  some  estate  in  land ;  it  runs  with  the 
land,  and  binds  not  only  heirs  and  executors  but  assignees.  Every 
assignee  may,  for  a  breach  of  such  covenant,  maintain  an  action 
against  all  or  any  of  the  prior  warrantors,  till  he  has  obtained  satis- 
faction. This  results  from  the  nature  of  the  covenant;  for  each  cov- 
enantor covenants  with  the  covenantee  and  his  assigns;  and  as  the 
lands  are  transferable,  it  was  reasonable  that  covenants  annexed  to 
them  should  be  transferred. 

As  every  covenantor  in  the  various  conveyances  becomes  liable  for 
a  breach  of  covenant  to  his  covenantee  and  his  assignees,  it  follows 
of  course,  that  notwithstanding  his  conveyance  of  the  land,  he  must, 
when  subjected  to  pay  damages  for  a  breach  of  the  covenant  to  his 
covenantee  or  his  assignees,  have  a  right  of  action  for  indemnity 
against  his  covenantor.  This  demonstrates  that  the  rights  and  lia- 
bilities of  the  various  parties  to  a  covenant  real,  continue  notwith- 
standing a  conveyance  of  the  land  to  which  it  is  attached;  and  that 
any  of  them  can  sustain  a  proper  action  when  injured  by  a  breach 
of 'it. 

It  has  been  contended,  that  a  covenant  real,  like  the  land,  passes  by 
the  assignment  of  the  land  from  the  grantor  to  the  grantee,  and  is 
thereby  extinguished,  and  the  grantor  divested  of  it,  so  that  he  can 
m.aintain  no  action  for  a  breach  subsequent  to  the  assignment ;  though 
it  is  conceded,  that  the  covenant  is  revived  in  favor  of  the  assignor  by 
satisfying  the  damages  for  a  breach  of  it.  But  the  grantor  does  not 
become  totally  divested  of  the  covenant  by  a  grant  of  the  land.  By 
the  conveyance  of  the  estate,  the  grantee  becomes  entitled  as  assignee 
to  the  benefit  of  the  covenants  annexed  to  the  land  against  his  grantor, 
and  all  prior  grantors;  but  this  does  not  take  away  the  right  which 
his  immediate  grantor  had  to  look  to  his  grantor,  and  all  prior 
grantors  for  indemnity,  in  case  of  a  breach  of  the  covenant  subse- 

1  See  Hebert  v.  Handy,  29  R.  I.  543. 


BOOTH    V.    STARR   AND   OTHERS  557 

quent  to  the  assignment,  for  whicli  he  is  liable  to  pay  damages.  It 
cannot  be  said,  that  the  covenant  is  extinguished  by  the  assignment 
of  the  land,  and  then  revived  by  being  subjected  to  pay  damages  for 
a  breach  of  it.  If  the  covenant  be  once  extinguished,  it  cannot  be 
revived  without  the  consent  of  both  parties;  and  the  circumstance 
that  the  assignor,  on  being  compelled  to  pay  damages  for  a  breach 
of  it  to  a  subsequent  assignee  may  maintain  an  action  against  his 
assignor,  proves  that  the  contract  continued  in  force,  and  did  not 
become  extinguished  by  operation  of  the  assignment. 

To  prove  that  the  assignor  cannot  sue  for  a  subsequent  breach,  1 
Chitty  on  Pleadings,  10,  has  been  relied  on;  where  it  is  said,  an 
assignor  cannot  sue  for  a  subsequent  breach  of  a  covenant  running 
Avith  an  estate  in  lands,  but  the  assignee  must  sue.  This  doctrine  can- 
not be  true  to  the  extent  contended  for;  as  it  would  prove,  that  the 
assignor,  after  having  paid  the  damages  to  his  assignee,  could  not 
call  on  his  assignor;  though  it  is  conceded  in  such  case  he  could 
maintain  an  action.  But  to  understand  the  meaning  of  Chitty,  we 
must  examine  the  authority  to  which  he  refers,  1  Saund.  241  c 
(Wms.  edit.).  It  is  there  stated,  "  That  the  lessor  cannot  maintain 
an  action  of  covenant  after  he  has  parted  with  the  reversion  for  any 
breach  of  covenant  accruing  subsequent  to  the  grant  of  the  rever- 
sion; for  the  Statute  of  Hen.  8  has  transferred  the  privity  of  con- 
tract, together  with  the  estate  in  the  land,  to  the  assignee  of  the 
reversion."  Thus,  if  one  should  lease  land,  and  the  lessee  covenant 
to  pay  rent,  or  do  particular  acts  on  the  land,  and  the  lessor  assign 
his  interest  in  the  reversion,  then  the  Statute  of  32  Hen.  8  transfers 
the  privity  of  contract,  and  the  assignee  of  the  reversion  only  can 
maintain  an  action  against  the  lessee  for  a  breach  of  his  covenant 
subsequent  to  the  assignment;  for  he  has  the  privity  of  contract 
and  estate,  and  he  can  only  be  damnified  by  the  breach  of  covenant 
on  the  part  of  the  lessee.  But  suppose  a  lessor  makes  a  lease  with 
covenant  of  warranty;  and  the  lessee  assigns  his  interest  in  the 
estate;  after  which  his  assignee  is  evicted  and  recovers  damages 
against  him  for  the  breach  of  the  covenant  of  warranty;  it  will  not 
be  pretended  that  in  this  case,  the  lessee,  who  has  now  assumed  the 
character  of  assignor,  cannot  maintain  an  action  against  his  lessor 
on  the  covenant  of  warranty,  though  the  breach  happened  subsequent 
to  the  assignment.  The  case  there  stated  in  1  Saund.  241  c,  must 
have  related  to  covenants  to  be  performed  by  the  lessee,  and  must  be 
understood  to  mean,  that  the  lessor  cannot  bring  an  action  of  cove- 
nant against  the  lessee  after  he  has  parted  with  the  reversion  for  any 
breach  of  covenant  accruing  subsequent  to  the  assignment ;  which  is  a 
correct  principle.  It  cannot  mean  that  an  assignor  cannot  sue  for 
a  subsequent  breach;  for  this  in  many  instances  cannot  be  correct. 
The  authority  then  relied  on  has  no  application  to  the  point  in  dis- 
pute; and  I  apprehend  the  position  is  undeniable,  that  in  all  cases 
where  there  have  been  sundry  conveyances  of  land,  with  covenants 


558  BOOTH    V.    STARR    AND    OTHERS  [CHAP.    IX 

real  annexed  to  them,  all  the  covenants  between  each  party  continue 
operative  notwithstanding  such  conveyance,  and  every  one  when 
damnified  can  maintain  an  action. 

In  the  present  case,  the  grantee  or  covenantee  of  the  plaintiff  has 
been  evicted;  but  the  plaintiff  has  never  been  sued,  nor  has  he  paid 
the  damages.  The  question  is,  Avhether  under  these  circumstances,  he 
can  maintain  this  action  against  the  defendant,  who  is  his  immediate 
covenantor. 

The  last  assignee  can  never  maintain  an  action  on  the  covenant  of 
warranty  till  he  has  been  evicted.  Though  the  title  may  be  defective; 
though  he  may  be  constantly  liable  to  be  evicted;  though  his  war- 
rantor may  be  in  doubtful  circumstances,  —  yet  he  can  bring  no 
action  on  the  covenant  till  he  is  actually  evicted ;  for  till  then,  there 
has  been  no  breach  of  the  covenant,  no  damage  sustained.  By  a 
parity  of  reason,  the  intermediate  covenantees  can  have  no  right  of 
action  against  their  covenantors,  till  something  has  been  done  equiva- 
lent to  an  eviction;  for  till  then  they  have  sustained  no  damage.  As 
the  last  assignee  has  his  election  to  sue  all  or  any  of  the  covenantors, 
as  a  recovery  and  satisfaction  by  an  intermediate  covenantee  against 
a  prior  covenantor  would  not  bar  a  suit  by  a  subsequent  assignee, 
such  intermediate  assignee  ought  not  to  be  allowed  to  sustain  his 
action  till  he  has  satisfied  the  subsequent  assignee;  for  otherwise 
every  intermediate  covenantee  might  sue  the  first  covenantor;  one 
suit  would  be  no  bar  to  another;  they  might  all  recover  judg- 
ment, and  obtain  satisfaction;  so  that  a  man  might  be  liable  to 
sundry  suits  for  the  same  thing,  and  be  compelled  to  pay  damages  to 
sundry  different  covenantees  for  the  same  breach  of  covenant.  In 
the  present  case,  the  plaintiff  cannot  know  that  his  covenantee  who 
has  been  evicted  will  ever  sue  him ;  he  may  bring  his  action  directly 
against  the  defendant;  a  recovery  in  this  suit,  and  payment  of  the 
damages,  would  be  no  bar;  the  defendant  could  then  have  no  remedy 
but  by  petition  for  new  trial;  and  if  the  plaintiff  in  the  mean  time 
should  become  unable  to  refund  the  money,  the  defendant  would,  by 
operation  of  law,  be  compelled  to  pay  the  same  demand  twice,  with- 
out redress.  But  if  the  principle  is  adopted  that  the  intermediate 
covenantee  can  never  sue  till  he  has  satisfied  the  damages,  no  such 
injustice  can  ensue. 

The  subject  may  be  considered  in  another  view.  In  all  these  cases 
it  is  the  duty  of  the  first  covenantor  to  make  good  the  damages  for  a 
breach  of  the  covenant,  and  to  indemnify  all  the  subsequent  cove- 
nantees. Each  subsequent  covenantor  is  liable  to  all  the  subsequent 
covenantees,  and  on  paying  the  damasces  will  have  a  claim  for  in- 
demnity against  a  prior  covenantor.  The  nature  then  of  the  engage- 
ment of  the  first  covenantor  is,  to  indemnify  all  the  subsequent  cove- 
nantees from  all  damages  arising  from  his  breach  of  the  covenant. 

It  may  be  proper,  then,  to  examine  what  is  necessary  to  give  the 
surety  a  right  of  action  against  the  principal.     It  would  seem  to  be 


BOOTH    V.    STARR   AND    OTHERS  559 

a  clear  dictate  of  reason,  that  tlie  mere  liability  to  pay  money  for 
another,  he  continuing  liable  to  pay  the  money  himself,  can  never  be 
a  cause  of  action  on  the  contract  of  indemnity,  for  it  is  uncertain 
whether  the  surety  will  ever  be  compelled  to  pay,  and  the  principal 
may  pay  himself.    Such  uncertainty  can  be  no  ground  of  action.    It 
is  not  necessary  that  actual  payment  should  be  made.    If  a  suit  should 
be  brought,  judgment  rendered,  or  the  person  imprisoned,  it  will  be 
sufficient;  but  mere  liability,  without  any  damage,  is  not.     On  this 
point  no  doubt  could  be  entertained  were  it  not  for  the  decision  in  the 
case  of  FiUy  v.  Brace,  1  Eoot,  507,  where  it  is  distinctly  laid  down, 
that  mere  liability,  without  any  damage,  is  sufficient  cause  of  action. 
In  examining  this  question  it  may  be  premised,  that  there  is  a 
difference  between  a  contract  to  discharge  or  acquit  from  a  debt,  and 
one  to  discharge  or  acquit  from  the  damages  by  reason  of  it.    Where 
the  condition  of  the  contract  is  to  discharge  or  acquit  the  plaintiff 
from  a  bond  or  other  particular  thing,  then  unless  this  be  done,  the 
defendant  is  liable  from  the  nature  of  the  contract,  though  the  plain- 
tiff has  not  paid.     But  if  it  be  to  discharge  or  acquit  the  plaintiff 
from  any  damage  by  reason  of  such  land  or  particular  thing,  then 
it  is  a  condition  to  indemnify  and  save  harmless.     1  Saund.  117,  n. 
(1),  ("Wms.  edit.).     In  the  case  of  FUJ}i  v.  Brace,  much  reliance  is 
placed  on  cases  of  actions  sustained  by  sheriffs  for  escapes  when  they 
had  not  paid  the  debt  to  the  creditor.     The  ground  is  assumed,  that 
the  liability  of  the  sheriff  to  pay  the  debt  gives  the  right  of  action; 
but  this  is  an  erroneous  assumption.    The  wrong  done  by  the  escape 
itself  furnishes  a  cause  of  action.     The  sheriff  would  be  entitled  to 
recover,  admitting  he  was  not  liable  to  the  creditor.     Suppose  an 
escape,  and  before  suit  brought  the  debtor  escaping  pays  the  debt  to 
the  creditor,  this  would  be  no  bar  to  an  action;  for  by  the  wrongful 
act  of  the  escape,  a  right  of  action  accrued  to  the  sheriff,  which  can- 
not be  discharged  without  his  concurrence;  and  the  payment  of  the 
debt  to  the  creditor  could  only  go  in  mitigation  of  damages. 

The  case  of  Griffith  v.  Harrison;  1  Salk.  197,  is  also  cited.  That 
was  a  covenant  to  be  discharged  and  indemnified  from  all  arrears  of 
rent ;  and  the  breach  alleged  was,  that  rent  was  in  arrear.  The  court 
determined  the  declaration  to  be  bad,  because  rent  remaining  in 
arrear  and  not  paid,  is  not  a  damage,  unless  the  plaintiff  be  sued  or 
charged;  and  if  paid  at  any  time  before  such  damage  incurred  by 
the  plaintiff,  it  is  sufficient.  This  is  an  unanswerable  and  conclu- 
sive authority  to  disprove  the  doctrine  it  is  adduced  to  maintain. 
Here  the  liability  to  pay  the  rent  is  acknowledged ;  and  the  court  say, 
it  is  not  a  damage,  unless  the  plaintiff  be  sued  or  charged ;  and  if  paid 
at  any  time  before,  it  is  sufficient.  So  it  may  be  said  in  the  case  of 
FiUy  V.  Brace,  the  debt  remaining  unpaid  is  not  a  damage,  unless 
the  plaintiff  be  sued  or  charged;  if  the  defendant  pays  it  any  time 
before  the  plaintiff  is  sued,  he  is  not  liable. 

But  the  court  do  not  seem  to  rely  upon  the  principal  point  decided 


560  BOOTH    V.    STARR   AND   OTHERS  [CHAP.    IX 

in  that  case,  but  on  a  cUclum  contained  in  the  report.  It  is  there 
said,  that  where  the  counter  bond  or  covenant  is  given  to  save  harm- 
less from  a  penal  bond  before  the  condition  is  broken,  then  if  the 
penal  sum  be  not  paid  at  the  day,  and  so  the  condition  not  preserved, 
the  party  to  be  saved  harmless  does  by  this  become  liable  to  the 
penalty,  and  so  is  damnified,  and  the  counter  bond  forfeited.  This 
is  the  precise  principle  decided  in  the  case  of  Abbots  v.  Johnson,  3 
Bulstr,  233,  cited  in  the  case  of  Filly  v.  Brace,  as  proving  the  doc- 
trine that  mere  liability  is  a  ground  of  action.  As  these  two  cases 
contain  but  one  decision  which  is  reported  at  large  in  Bulstrode,  I 
will  examine  that  authority,  and  see  whether  it  supports  the  doctrine 
for  which  it  was  cited.  That  was  an  action  of  debt  on  an  obligation, 
and  the  case  was,  the  plaintiff  was  bound  in  a  bond  with  the  defend- 
ant for  payment  of  money  on  a  day  to  come,  and  had  a  counter  bond 
from  the  defendant  for  saving  him  harmless.  The  defendant  paid 
not  the  money  at  the  day.  Upon  this  his  default,  the  plaintiff 
brought  his  action  on  the  counter  bond.  To  this  the  defendant 
pleaded  non  damnificatus.  The  plaintiff  replied,  showing  all  this 
matter,  and  that  he  requested  the  defendant  to  pay  this  money,  which 
he  did  not  do;  on  which  there  was  a  demurrer.  And  the  question 
was,  whether  this  non-payment  of  the  money  at  the  day  by  the  defend- 
ant be  a  present  forfeiture  of  the  counter  bond,  without  other 
damage.  The  court  decided,  that  the  failure  of  payment  at  the  day 
by  the  defendant,  by  which  he  put  the  plaintiff  in  danger  of  being 
arrested,  was  a  damnification  to  him,  and  a  present  breach  of  the  con- 
dition, and  a  forfeiture  of  the  counter  bond.  Here  it  must  be  noted, 
th.at  there  was  a  bond  conditioned  to  pay  money  at  a  future  day ;  and 
the  ground  of  the  decision  is,  not  the  liability,  but  the  failure  of  pay- 
ing the  money.  When  the  plaintiff  gave  the  penal  bond  with  the 
defendant  payable  at  a  future  time,  no  liability  to  be  sued,  or  to  pay 
the  penalty,  existed.  When  the  counter  bond  was  taken  to  save  him 
harmless,  it  was  in  effect  an  engagement  that  he  should  never  be 
liable  to  pay  the  money,  or  be  subjected  to  the  penalty.  The  failure 
to  pay  the  money  on  the  bond  by  the  day  rendered  the  plaintiff  liable 
to  pay  the  penalty;  and  this  was  a  present  breach  of  the  condition  of 
the  counter  bond;  for  by  the  non-payment  of  the  money,  a  liability 
accrued  which  did  not  before  exist,  and  this  very  liability  arising 
from  the  failure  of  paying  the  money  at  the  day,  was  the  ground  of 
sustaining  the  action.  This  is  very  far  from  proving,  that  where 
there  is  a  contract  to  save  harmless  from  an  existing  liability,  such 
liability  is  a  ground  of  action.  Indeed,  the  fair  inference  is,  that 
such  liability  is  not  to  be  deemed  a  ground  of  action  from  the  circum- 
stance that  the  court  considers  the  failure  of  paying  the  money  at 
the  day  as  the  forfeiture  of  the  counter  bond.  I  apprehend  no 
aitthority  can  be  found,  that  will  support  the  doctrine  laid  down  in 
Filly  V.  Brace;  and  the  cases  cited  in  favor  of  it,  directly  disprove  it. 
But  let  us  examine  this  question  on  principle.    What  is  the  nature 


WITHY    V.    MUMFORD  561 

of  the  contract  to  indemnify  and  save  harmless?  It  is  not  that  the 
plaintiff  shall  never  be  liable.  The  existence  of  the  liability  is  the 
ground  of  the  contract;  and  the  object  of  it  is  to  make  good  to  the 
plaintiff  any  damage  he  may  suffer  by  reason  of  it.  This  liability 
against  the  consequences  of  which  the  contract  is  to  indemnify,  can- 
not be  a  breach  of  the  contract  itself.  There  must  be  an  actual 
damage  arising  from  it  to  constitute  a  breach  according  to  the  terms 
of  it.  If  liability  without  damage  be  a  cause  of  action,  then  the 
contract  is  broken  the  moment  it  is  made ;  and  the  defendant  may  be 
sued.  He  may  be  subjected  to  pay  it  to  his  surety;  and  as  this  will 
be  no  bar  to  a  suit  by  the  creditor,  he  may  be  compelled  to  pay  it 
again,  and  then  seek  his  remedy  against  the  surety.  The  law  will  not 
countenance  such  absurdity  and  injustice.  Nor  is  there  any  danger 
from  delay  to  the  surety;  for  if  he  suspects  that  the  principal  is  in 
doubtful  circumstances,  he  may  at  any  time  satisfy  the  demand;  and 
then  he  has  a  clear  right  of  action  on  the  contract  of  indemnity. 

This  point  is  equally  clear  on  authority.  In  all  cases  where  the 
condition  of  the  bond  or  contract  is  to  indemnify  and  save  harmless, 
the  proper  plea  is  non  dammficafus.  The  defendant  may  say,  that 
the  plaintiff  has  not  been  damnified;  and  then  it  is  necessary  for  the 
plaintiff  to  reply  and  show  the  damage  to  entitle  him  to  recover. 
This  ineontestably  proves  that  liability  is  not  a  ground  of  action; 
for  the  plea  admits  the  existence  of  the  liability,  and  denies  the 
damage;  and  the  reply  setting  forth  the  damage  shows  it  to  be 
necessary  to  constitute  a  ground  of  action.  Suppose  to  the  plea  of 
7wn  damnific  at  us,  the  plaintiff  should  reply  the  liability  only?  Will 
any  lawyer  say,  that  such  reply  is  good  ?  If  not,  the  consequence  is, 
that  something  more  than  liability  must  be  shown;  and  this  must 
always  be  actual  damage. 

In  this  opinion  the  other  judges  severally  concurred. 

New  trial  to  he  granted.^ 


WITHY  V.  MUMFOKI) 
5  Cow.  (N.  Y.)   137.     1825. 

On  demurrer  to  the  declaration.  This  was  of  a  plea  of  breach  of 
covenant,  and  stated  that  on  the  21st  of  February,  1814,  the  defend- 
ant, by  indenture  between  him  and  one  Harnden,  did  grant,  &c.,  to 
Harnden  in  fee,  certain  lands  (describing  them);  and  that  he  did 
covenant,  &c.,  with  Harnden,  his  heirs  and  assigns,  kc,  to  warrant 
and  defend  the  premises,  &c.,  against  all  persons  claiming,  &c.;  that 
on  the  day  of  the  execution  of  this  indenture,  Harnden  entered  into 
possession  of  the  premises,  &c.;  and  afterwards,  March  12th,  1817, 
1  Compare  Thompson  v.  Richmond,  102  Me.  335, 


562  WITHY    V.    MUMFORD  [CHAP.    IX 

by  indentnro  between  him  and  the  plaintiff,  conveyed  the  same  prem- 
ises to  the  plaintiff,  in  fee,  who  entered,  &c.;  but  was  afterwards 
evicted  by  certain  persons  having  lawful  title,  before  the  defendant 
conveyed  to  Harnden.    And  so,  &c. 

The  defendant  craved  oyer  of  the  indenture  between  Harnden  and 
the  plaintiff,  which  was  granted ;  and  the  indenture  set  forth,  con- 
tained a  covenant  of  warranty  from  Harnden  to  the  plaintiff,  his 
heirs  and  assigns.     For  this  cause, 

Demurrer  and  joinder. 

Curia,  per  Savage,  C.  J.  The  point  on  which  the  defendant  relies, 
is,  that  the  deed  from  Harnden  to  the  plaintiff  containing  a  covenant 
of  warranty,  he  cannot  sue  as  assignee. 

In  the  days  of  Lord  Coke,  the  law  was  understood  differently.  He 
says,  "  If  a  man  enfeoffeth  A.  to  have  and  to  hold  to  him,  his  heirs 
and  assigns;  A.  enfeoffeth  B.  and  his  heirs;  B.  dieth,  the  heir  of  B. 
shall  vouch  as  assignee  to  A. :  so  as  heirs  of  assignees,  and  assignees 
of  assigns,  and  assignees  of  heirs,  are  within  this  word  (assigns) ; 
which  seemed  to  be  a  question  in  Bracton's  time.  And  the  assignee 
shall  not  only  vouch,  but  also  have  a  warrant  ia  cartoe."  Co.  Lit. 
384  b,  and  the  authorities  there  cited. 

The  same  doctrine  is  found  in  Spencer's  Case,  5  Kep.  17,  and  in  all 
the  books.  That  the  covenant  to  warrant  and  defend,  is  a  covenant 
which  runs  with  the  land,  and  that  the  assignee  is  entitled  to  the 
benefit  of  all  such  covenants,  is  a  proposition  which  needs  not  the 
citation  of  an  authority  for  its  support.  The  doctrine  will  be  found, 
however,  in  4  Cruise's  Dig.  452,  3  to  7. 

The  case  of  Mlddlemore  v.  Goodale,  Cro.  Car.  503,  was  an  action 
by  the  assignee  on  the  covenant  for  further  assurance.  The  defend- 
ant pleaded  a  release  from  J.  S.  with  whom  he  made  the  covenant, 
which  release  was  executed  after  the  commencement  of  the  suit.  All 
the  court  agreed,  that  the  covenant  ran  with  the  land,  and  that  the 
assignee  should  have  the  benefit  of  it. 

From  these  authorities  it  is  clear  that  the  covenant  of  warranty 
runs  with  the  land,  and  is  intended  for  the  benefit  of  the  grantee, 
his  heirs  or  his  assigns,  according  to  the  language  of  the  covenant 
itself. 

But  it  is  contended  by  the  defendant,  that  though  the  assignee  of 
the  grantee  may  generally  resort  to  the  original  grantor,  for  a  breach 
of  the  covenant  happening  after  the  assignment ;  yet  he  has  not  such 
remedy,  when  he  has  a  warranty  from  his  immediate  grantor.  There 
is  surely  nothing  in  the  covenant  of  warranty  itself,  to  justify  such  a 
doctrine ;  nor  is  there  any  reason  growing  out  of  the  acts  of  the  par- 
ties, why  the  assignee,  by  taking  a  warranty  from  his  immediate 
grantor,  should  lose  his  claim  upon  the  first  grantor.  It  cannot 
operate  by  way  of  release.  If  this  were  the  consequence,  a  quitclaim 
deed  would  often  be  a  better  conveyance  than  one  with  full  covenants. 

It  is  contended,  however,  that  this  doctrine  is  supported  by  author- 


WITHY    V.    MUMFORD  563 

ity,  and  the  cases  of  Greenhy  v.  Wilcochs,  2  John.  1,  and  Kane  v. 
Sanger,  14  John.  89,  are  cited. 

The  case  of  Greenhy  v.  Wilcochs  decides,  that  an  action  upon  the 
covenant  of  seisin,  cannot  be  brought  by  the  assignee,  because  the 
grantor,  having  no  title  when  the  covenant  is  made,  it  is  broken 
immediately,  before  the  assignment,  and  when  broken,  becomes  a 
mere  chose  in  action,  and,  as  such,  is  incapable  of  assignment.  This 
being  the  only  reason  given,  it  would  seem  to  follow,  that  whoever 
Avas  owner  of  the  land,  which  was  the  substratum  of  the  covenant, 
Avould  be  entitled  to  prosecute  for  the  breach  of  a  covenant  running 
with  that  land,  if  broken  while  the  land  was  in  his  hands.  This  case, 
therefore,  proves  nothing  against  the  plaintiff's  right  of  recovery 
in  the  principal  case,  but  rather  supports  it.  The  plaintiff,  an 
assignee,  has  been  evicted.  The  covenant  remained  unbroken,  till 
after  the  assignment  to  him.  He  has  been  damnified,  not  the  original 
grantee, ' Harnden ;  and  if  the  defendant's  doctrine  be  correct,  Harn- 
den  may  recover  damages  which  he  never  sustained,  and  may  pocket 
the  money;  while  the  plaintiff,  upon  whom  the  whole  loss  has  fallen, 
can  recover  nothing,  if  Harnden  be  unable  to  respond.  Such  a  doc- 
trine I  should  hold  utterly  untenable,  were  it  not  for  what  was  said 
by  the  late  Chief  Justice  Spencer,  in  the  case  of  Kane  v.  Sanger. 

That  was  an  action  of  covenant,  brought  to  recover  damages  for  an 
eviction  of  the  plaintiff's  grantees.  The  counsel  for  the  plaintiff 
seems  not  to  have  argued  the  main  point ;  but  placed  his  right  to  re- 
-cover upon  a  variance  between  the  defendant's  notice  and  proof. 
Spencer,  J.,  in  delivering  the  opinion  of  the  court,  says,  "  It  is  a 
general  rule,  that  where  covenants  run  with  the  land,  if  the  land  is 
assigned  or  conveyed,  before  the  covenants  are  broken,  and  after- 
wards they  are  broken,  the  assignee  or  grantee  can  alone  bring  the 
action  of  covenant  to  recover  damages ;  but  if  the  grantor  or  assignor 
is  bound  to  indemnify  the  assignee  or  grantee,  against  such  breach  of 
covenant,  then  the  assignor  or  grantor  must  bring  the  action."  And 
he  cites  2  Mass.  Eep.  460. 

In  a  subsequent  part  of  the  opinion,  he  admits,  that  to  avoid  cir- 
cuity of  action,  a  release  from  the  plaintiff's  grantees  to  the  defend- 
ant, would  have  been  a  bar  to  the  suit,  but  for  the  circumstance, 
that  they  had  given  the  plaintiff  mortgages;  and  the  mortgages 
reinvested  the  title  in  the  plaintiff;  so  that,  in  effect,  there  were  no 
assignees.  The  plaintiff  having  conveyed  away  the  property,  and 
received  it  back,  stood  as  if  no  conveyance  had  ever  been  executed  by 
him.  These  mortgages  had  been  assigned  to  Morris;  and  it  Avas  a 
fact  in  the  case,  that  the  suit  was  brought  by  the  direction,  and  for 
the  benefit  of  Morris;  so  that  the  recovery,  after  all,  was  virtually 
in  favor  of  the  assignee. 

The  remark,  therefore,  that  the  assignee,  with  warranty,  could  not 
maintain  an  action,  as  assignee,  for  a  breach  after  the  assignment, 
was  not  called  for.    It  professes  to  be  supported  by  no  authority,  but 


564  WITHY    V.    MUMFORD  [CHAP.    IX 

the  case  of  Bichford  v.  Paige,  2  Mass.  Rep.  460,  per  Parsons,  C.  J. 
With  the  greatest  deference,  I  do  not  understand  such  doctrine  to  be 
there  asserted.  The  case  itself  was  an  action  by  the  covenantee, 
against  the  covenantor;  and  breaches  were  assigned  upon  the  cove- 
nants of  warranty,  of  seisin,  and  against  encumbrances.  The  defend- 
ant pleaded,  that  the  plaintiff,  before  suit  brought,  had  conveyed  to 
one  Roberts,  without  any  covenants  making  him  liable  for  any  defect 
of  title.  The  plaintiff,  in  his  replication,  set  out  his  deed  to  Roberts, 
being  a  release  with  warranty  against  himself,  his  heirs  and  assigns. 
To  this  replication  the  defendant  demurred.  No  encumbrances  were 
shown,  nor  any  eviction.  The  court,  therefore,  decided,  that  the 
plaintiff  ought  to  recover  on  the  covenant  of  seisin,  on  the  ground 
that  this  covenant  having  been  broken  before  the  plaintiff's  release  to 
Roberts,  it  was  a  chose  in  action,  unassignable  in  its  nature;  and, 
therefore,  did  not  pass  to  Roberts  by  the  release.  Parsons,  C.  J.,  in 
the  course  of  delivering  the  opinion  of  the  court,  advances  the  doc- 
trine relied  on  by  the  late  Chief  Justice  of  this  court,  in  these  words : 
"  It  is  a  general  rule,  that  when  a  feoffment  or  demise  is  made  of  land 
with  covenants  that  run  with  the  land,  if  the  feoffee  or  lessee  assign 
the  land,  before  the  covenants  are  broken,  and  afterwards  they  are 
broken,  the  assignee,  only,  can  bring  an  action  of  covenant,  to  re- 
cover damages,  unless  the  nature  of  the  assignment  he  such,  that  the 
assignor  is  holden  to  indemnify  the  assignee  against  a  breach  of  the 
coiienants  by  the  feoffor  or  lessor.  This  rule  is  founded  on  the  prin- 
ciple, that  no  man  can  maintain  an  action  to  recover  damages,  who 
can  have  suffered  no  damages." 

Here,  it  is  distinctly  asserted,  that  the  granfee,  who  is  also  the 
assignor,  can  maintain  no  action  for  damages,  if  he  is  himself  not 
liable  to  his  assignee.  Why?  because  he  can  have  suffered  no  dam- 
ages. The  assignee,,  who  has  suffered  damages,  and  he  only,  can 
bring  the  action  in  such  a  case.  But,  if  the  assignor  has  covenanted 
to  warrant  the  assignee,  and  has  actually  sustained  damage,  in  con- 
sequence of  his  covenant,  by  a  recovery  against  him,  then  he  has  his 
remedy  over  against  his  grantor.  Having  been  damnified,  he  is  there- 
by reinvested  with  his  original  rights.  Then  he  will  have  suffered 
the  damages,  which  he  seeks  to  recover  on  the  covenant  to  himself; 
and,  in  such  a  case,  the  assignee  is  not  the  only  person,  who,  under 
any  circumstances,  may  prosecute  the  original  grantor.  That  this 
is  what  Chief  Justice  Parsons  meant,  is  evident  from  what  he  lays 
down  as  the  foundation  of  the  rule.  The  reason  he  gives  is,  that  no 
man  can  recover  damages,  who  has  sustained  none.  Mere  liability 
is  not  enough.  Actual  damage  must  hav^e  been  suffered  by  the 
assignor,  to  authorize  the  action  by  him.  To  place  any  other  con- 
struction upon  the  language  of  Chief  Justice  Parsons,  is  to  render 
him  inconsistent  with  himself;  besides  making  him  stem  the  whole 
current  of  authority. 

This  subject  has  been  very  fully  discussed  in  Booth  v.  Starr,  1 


LEWES    V.   RIDGE  565 

Conn.  Rep.  N".  S.  244.  The  facts  were,  that  J.  Booth  conveyed  with 
warranty,  to  S.  Booth,  a  lot  of  land  in  Hudson.  Booth  conveyed  to 
a  third  person,  he  to  a  fourth,  and  he  to  the  fifth  grantee;  all  with 
covenants  of  warranty  and  seisin.  The  last  grantee  was  evicted ;  hut 
the  plaintiff,  S.  Booth,  was  not  damnified.  Swift,  J.,  states  the 
question  to  be,  whether,  in  the  case  of  a  covenant  of  warranty,  an- 
nexed to  lands,  a:n  intermediate  covenantee  can  maintain  an  action 
against  a  prior  covenantor,  without  having  been  sued  by,  or  satisfied 
the  damages  to  the  last  covenantee,  who  has  been  evicted. 

The  question  was  discussed  with  great  learning  and  ability,  and  at 
considerable  length;  and  the  court  expressly  decided,  that  the  last 
covenantee,  who  has  been  evicted,  may  prosecute  any,  or  all  of  the 
preceding  covenantors,  till  he  obtain  satisfaction;  but  that  no  inter- 
mediate covenantee  can  sue  his  covenantor,  till  he  himself  has  been 
compelled  to  pay  damages  upon  his  own  covenant. 

In  this  case,  the  plaintiff  might  have  sued  Harnden,  his  own  imme- 
diate grantor.  He  did  not  choose  to  do  so.  Harnden  may  have  been 
dead,  or  insolvent,  or  the  plaintiff  may  have  had  other  reasons  for 
preferring  a  direct  resort  to  the  defendant.  It  is  sufficient  for  his 
purpose,  that  he  had  a  legal  right  to  do  this. 

In  the  case  of  Garloch  v.  Gloss,-  decided  by  this  court,  in  May 
Term,  1824,  a  similar  action  was  sustained  by  an  intermediate  cove- 
nantee, who  had  been  damnified,  though  the  property  had  passed 
through  four  different  grantors,  with  warranty,  down  to  himself. 
The  plaintiff  is  entitled  to  judgment. 

Judgment  for  the  plaintiff.^ 


B.     Broken  Covenants. 
LEWES  V.  RIDGE 

Cro.  El.  863.     1601. 

Covenant.  The  defendant,  being  seised,  of  land  in  fee,  let  it  for 
life,  remainder  for  life,  rendering  rent.  He  afterwards  acknowledged 
a  Statute;  and  after  that  by  indenture  bargained  and  sold  the  rever- 
sion ;  and  covenanted  with  the  bargainee,  his  heirs,  and  assigns,  that 
it  should  be  discharged  within  two  years  of  all  Statutes,  charges,  and 
encumbrances,  excepting  the  estate  for  life.  The  Statute  is  extended, 
and  thereui)on  this  reversion  and  rent  was  extended.  The  bargainee 
grants  this  reversion  to  the  plaintiff,  Avho,  for  not  discharging  of  this 
Statute,  brings  covenant.  And  all  this  matter  being  disclosed  by  the 
count,  it  was  thereupon  demurred.  The  question  principally  moved 
was,  whether  the  plaintiff,  as  assignee,  shall  have  benefit  of  this  cove- 
nant made  to  the  bargainee  by  the  common  law,  or  by  the  32  Hen.  8, 

1  Compare  Snadon  v.  Salmon,  135  K3^  47. 


566  LUCY    V.    LEVINGTON  [CITAP.   IX 

c.  34.  —  But  because  the  covenant  was  broken  before  the  plaintiff's 
purchase,  the  land  being  then  in  extent,  and  so  a  thing  in  action, 
which  could  not  be  transferred  over,  it  was  adjudged  for  the  defend- 
ant that  the  action  was  not  maintainable  against  him. 

And  here  the  court  held  clearly,  that  the  32  Hen.  8,  c.  34,  doth  not 
extend  to  covenants  upon  estates  in  fee  or  in  tail,  but  only  upon  leases 
made  for  life  or  for  years,  and  therefore  this  assignee  was  out  of 
the  Statute.  But  for  the  other  matter  principally  it  was  adjudged 
ut  supra. 


LUCY  V.  LEVINGTON" 

2  Lev.  26.    1671. 

Covenant,  and  declares,  that  Levington  sold  to  Luke  Lucy,  the 
plaintiff's  testator,  certain  lands,  and  covenanted  with  him,  his  heirs 
and  assigns,  that  he  should  enjoy  the  same  against  him  and  Sir  Peter 
Vanlore,  their  heirs  and  assigns,  and  all  claiming  under  them;  and 
assigns  for  breach,  that  Croke,  claiming  under  Vanlore,  ejected  him. 
The  defendant  pleaded,  that  at  the  time  of  the  covenant  he  was 
seised  of  an  indefeasible  title,  and  that  by  a  subsequent  Act  of  Parlia- 
ment, reciting,  that  Sir  Peter  Vanlore  had  settled  this  estate  upon 
the  Lady  Mary  Powell,  and  that  certain  persons  had  unduly  procured 
her  to  levy  a  fine,  't  w^as  enacted,  that  this  fine  should  be  void,  and 
that  all  persons  might  enter  as  if  no  fine  had  been  levied;  and  that 
by  force  of  this  fine  et  non  aliter,  the  defendant  was  seised,,  and  sold 
and  made  this  covenant;  and  that  after  the  Act,  Croke,  claiming  by 
title  derived  from  the  Lady  Mary  Powell,  by  the  settlement  of  Van- 
lore,  by  virtue  of  the  said  Act  of  Parliament,  entered  and  ousted  him, 
upon  which  the  plaintiff  demurred.  And  for  the  defendant  't  was 
argued,  First,  that  the  covenant  was  with  Lucy,  his  heirs  and  assigns, 
touching  an  estate  of  inheritance;  therefore  the  action  ought  to  be 
brought  by  the  heir  or  assignee,  whose  loss  it  is,  and  not  by  the  ex- 
ecutor. To  which  'twas  answered  and  resolved  by  the  court,  That 
the  eviction  heing  to  the  testator,  he  cannot  have  an  heir  or  assignee 
of  this  land ;  and  so  the  damages  belong  to  the  executors,  though  not 
named  in  the  covenant,  for  they  represent  the  person  of  the  testator. 
2.  'T  was  argued,  that  the  title  on  the  covenant  being  good  at  the 
time  of  the  making,  and  the  title  upon  which  the  evidence  depends, 
created  by  subsequent  Act  of  Parliament;  here  is  no  breach,  9  Co. 
Pep.  106,  107,  Dame  Gresham's  Case.  To  which  't  was  answered  and 
resolved  by  Hale  and  Rainsford,  that  the  Act  does  not  make  a  new 
title,  but  removes  the  obstruction  that  kept  off  the  old  title ;  and  they 
said,  that  doubtless  Sir  Peter  Vanlore  was  named  in  the  covenant, 
for  the  purpose  that  they  might  be  secured  in  case  this  fine  thus  un- 
duly obtained  should  be  avoided.  But  Twysden  being  of  a  contrary 
opinion,  a  writ  of  error  was  brought  immediately.  Sed  quid  inde 
venit  nescio. 


KINGDON    V.    NOTTLE  567 

KINGDON,  Executrix  v.  NOTTLE 
1  M.  &  S.  355.    1813. 

This  action  was  brought  by  the  plaintiff,  as  executrix  of  Richard 
Kingdon ;  and  the  declaration  stated,  that  by  indentures  of  lease  and 
release  of  the  11th  and  12th  of  May,  1780,  the  defendant  conveyed  to 
R.  Kingdon  in  fee  a  4th  part  of  certain  lands  therein  particularly 
described,  with  a  proviso  for  redemption  upon  payment  of  £450; 
and  that  the  defendant  covenanted  for  himself,  his  heirs,  executors, 
and  administrators,  with  R.  Kingdon,  that  he  the  defendant  Avas  at 
the  time  of  the  execution  of  the  indenture  seised  of  and  in  the  i)rem- 
ises  of  a  good  and  indefeasible  estate  of  inheritance  in  fee  simple :  and 
that  he  had  good  right  to  convey  the  same  to  R.  Kingdon  and  his 
heirs:  and  further,  that  the  defendant  would  from  time  to  time, 
upon  every  reasonable  request  of  R.  Kingdon,  his  heirs  or  assigns, 
but  at  the  defendant's  costs,  execute  any  further  conveyance  for  the 
purpose  of  assuring  and  confirming  the  premises  to  R.  Kingdon,  his 
heirs  and  assigns;  and  then  the  following  breaches  were  assigned: 
first,  that  the  defendant  was  not  seised  in  fee  at  the  time  of  the  exe- 
cution of  the  indenture :  secondly,  that  the  defendant  had  not  at  that 
time  good  right  to  convey :  lastly,  that  the  plaintiff,  as  executrix  after 
the  death  of  R.  Kingdon,  made  a  reasonable  request  to  the  defendant 
to  execute  an  indenture  between  the  defendant  of  the  first  part,  the 
plaintiff  of  the  second  part,  and  Samuel  Anstice  of  the  third  part, 
intended  to  be  a  release  of  the  premises  for  suffering  a  common  re- 
covery for  the  better  assuring  and  confirming  the  premises  to  the 
uses  mentioned  in  the  deed ;  and  tendered  the  same  to  the  defendant 
for  execution,  but  the  defendant  refused  to  execute.  The  defendant 
demurred  to  the  first  and  second  breaches,  assigning  for  causes  that 
they  are  assigned  too  generally,  and  are  not  sufficiently  precise  and 
certain,  and  that  it  does  not  appear  that  R.  Kingdon  sustained  or 
could  have  sustained  any  damage  by  the  said  breaches  of  covenant, 
or  either  of  them,  nor  that  he  was  at  any  time  interrupted  or  dis- 
turbed in  his  enjoyment  of  the  premises  convej'ed  to  him  by  the 
defendant;  nor  that  the  said  Elizabeth  has  or  claims  any  interest  in 
the  premises,  or  that  she  is  heir  at  law,  or  assignee  of  the  same,  or 
any  part  thereof.  He  demurred  also  to  the  last  breach,  assigning  for 
causes,  that  it  does  not  appear  that  the  said  Elizabeth  hath  or  claims 
to  have  any  interest  in  the  premises,  as  assignee  or  otherwise,  of 
R.  Kingdon,  nor  to  what  person,  or  for  whose  use  the  deed  of  release 
was  intended  to  inure,  or  why  or  for  what  reason  Samuel  Anstice  was 
made  a  party  thereto,  nor  that  the  said  deed  of  release  was  a  reason- 
able conveyance  or  assurance  in  that  behalf :  and  also  for  that  the 
said  last-mentioned  breach  of  covenant  cannot  by  law  be  joined  in 
the  same  declaration  with  the  other  breaches  of  covenant  in  the  said 
declaration  assigned :  and  also  for  that  the  said  declaration  as  to  the 


568  KINGDON    V.    NOTTLE  [CHAP.    IX 

said  breach  of  covenant  lastly  assigned  is  in  various  other  respects 
insufficient,  informal,  and  defective.     Joinder. 

Lord  Ellenborough,  C.  J.  This  is  a  case  in  which  a  person  may 
have  formed  his  opinion  from  what  is  to  be  found  in  a  book  of  very 
excellent  authority,  I  allude  to  Comyns's  Digest  (Com.  Dig.  tit.  Cove- 
nant, B.  1),  in  which  it  is  laid  down  generally  that  if  a  man  covenant 
with  B.  upon  a  grant  or  conveyance  of  the  inheritance,  his  executor 
may  have  covenant  for  damages  upon  a  breach  committed  in  the  life- 
time of  his  testator.  But  when  that  position  comes  to  be  compared 
with  Lucy  v.  Levington,  which  is  the  authority  there  cited  in  support 
of  it,  it  will  be  found  not  to  be  borne  out  by  that  case  in  its  generality ; 
for  in  that  case  there  was  an  eviction  in  the  lifetime  of  the  testator, 
and  therefore  the  damages  in  respect  of  that  eviction,  for  which  the 
action  was  then  brought,  were  properly  the  subject  of  suit  and  re- 
covery by  the  executor;  and  nothing  descended  to  the  heir.  But  in 
this  case  there  is  no  other  damage  than  such  as  arises  from  a  breach 
of  the  defendant's  covenant  that  he  had  a  good  title,  and  there  is  a 
difficulty  in  admitting  that  the  executrix  can  recover  at  all,  without 
also  allowing  her  to  recover  to  the  full  amount  of  the  damages  for 
such  defect  of  title;  and  in  that  case  a  recovery  by  her  would  bar 
the  heir;  for  I  apprehend  the  heir  could  not  afterwards  maintain 
another  action  upon  the  same  breach.  Had  the  breach  here  been 
assigned  specially  with  a  view  to  compensation  for  a  damage  sus- 
tained in  the  lifetime  of  the  testator,  and  so  as  to  have  left  a  subject 
of  suit  entire  to  the  heir,  this  action  might  have  gone  clear  of  the 
difficulty,  because  then  it  would  not  operate  as  a  bar  to  the  heir; 
but  framed  as  it  now  is,  it  seems  to  me  that  it  would  operate  as  a 
bar  to  his  action.  It  is  certainly  a  new  point ;  and  if  I  thought  that 
more  authorities  could  be  found  than  what  have  been  cited,  which, 
however,  from  the  industry  of  the  gentlemen  who  have  argued  the 
case,  is  not  very  probable,  I  should  have  paused.  But  what  has 
been  cited  from  Co.  Lit.,  and  the  other  authorities,  that  the  executor 
of  a  person  who  died  seised  of  a  rent  could  not  maintain  an  action 
to  recover  the  arrears  incurred  in  the  lifetime  of  his  testator,  inas- 
much as  he  could  not  represent  his  testator  as  to  any  contracts  relat- 
ing to  the  freehold  and  inheritance,  is  in  a  great  degree  an  authority 
to  show  that  in  the  present  case  the  executrix  does  not  stand  in  a 
situation  to  take  advantage  of  this  breach  of  covenant.  Therefore 
on  the  principle  of  what  is  there  laid  down,  and  in  the  absence  of 
any,  damage  to  the  testator,  which,  if  recovered,  would  properly  form 
a  part  of  his  personal  assets,  I  do  not  know  how  to  say  that  this 
action  is  maintainable. 

Le  Blanc,  J.  This  action  is  brought  by  the  executrix  to  increase 
the  personal  estate  of  the  testator.  The  difficulty  arises  from  its  being 
assigned  as  a  breach  of  covenant  in  the  lifetime  of  the  testator.  The 
breach  assigned  is  in  not  having  a  good  title.  But  how  is  that  breach 
shown  to  have  been  a  damage  to  the  testator  ?    It  is  not  alleged  that 


KING    V.    JONES   AND   ROWLAND  569 

the  estate  was  thereby  prejudiced,  during  the  lifetime  of  the  testator; 
and  if  after  his  decease  any  damage  accrued,  that  would  be  a  matter 
which  concerns  the  heir.  The  distinction  which  attends  real  and  per- 
sonal covenants  with  respect  to  the  course  in  which  they  go  to  the 
representatives  of  the  person  with  whom  the  covenants  are  made,  is 
a  clear  one:  real  covenants  run  with  the  land,  and  either  go  to  the 
assignee  of  the  land,  or  descend  to  the  heir,  and  must  be  taken  advan- 
tage of  by  him  alone ;  but  personal  covenants  must  be  sued  for  by  the 
executor.  Now  this  is  a  covenant  on  which  after  one  breach  has  been 
assigned  and  a  recovery  had  thereon,  the  party  cannot  again  recover. 
It  is  not  like  a  covenant  for  not  repairing,  for  a  breach  of  which 
damages  may  be  recovered  now,  and  again  hereafter,  and  so  toties 
quoties;  although  even  in  that  case  there  is  always  a  difficulty  in 
apportioning  the  damages.  But  here  no  breach  from  which  a  damage 
accrued  to  the  testator  is  stated  at  all.  Yet  the  action  is  brought 
to  increase  the  personal  estate,  which  belongs  to  the  executor;  when 
the  estate  itself,  such  as  it  is,  has  come  to  the  heir. 

Bayley,  J.  The  testator  might  have  sued  in  his  lifetime ;  but  hav- 
ing forborne  to  sue,  the  covenant  real  and  the  right  of  suit  thereon, 
devolved  with  the  estate  upon  the  heir.  If  this  were  not  so,  and  the 
executrix  was  permitted  to  take  advantage  of  this  breach  of  covenant, 
she  would  be  recovering  damages  to  be  afterwards  distributed  as  per- 
sonal assets,  for  that  which  is  really  a  damage  to  the  heir  alone ;  and 
yet  such  recovery  would  be  a  complete  bar  to  any  action  which  the 
heir  might  bring.  The  case  of  Lucy  v.  Levington  struck  me  as  a 
strong  authority  for  the  defendant :  because  in  that  case  it  appears 
there  was  an  actual  damage  accruing  to  the  testator  by  the  eviction, 
whereby  he  was  deprived  of  the  rents  and  profits  during  his  life,  and 
of  course  the  personal  estate  was  so  far  damnified.  There,  as  I 
have  before  observed,  if  the  executor  could  not  have  sued,  no  other 
person  could,  because  the  testator  having  been  evicted,  there  could 
be  no  heir  of  the  land,  and  that  was  given  as  a  reason  why  the  action 
was  holden  to  be  maintainable.  Judgment  for  the  defendant. 


KING  V.  JONES  AND  ROWLAND,  Executors 

5  Taunt.  418.     1814. 

Heath,  J.^  This  is  a  motion  in  arrest  of  judgment.  This  action 
appears  to  have  been  brought  by  the  plaintiff  as  heir  of  his  father, 
against  the  defendant  as  executor  of  Richard  Griffin,  upon  the  cove- 
nant of  the  testator;  and  the  pleadings  disclose  these  facts:  by  lease 
and  release  of  the  6th  and  7th  of  October.  1794,  T.  "Worge,  and 
Griffith  and  his  wife,  conveyed  certain  ])remises  to  J.  King;  and 
Griffith  covenanted  with  J.  King  that  he  and  Mary  his  wife  would  do 
^  Only  the  opinion  is  given. 


570  KING    V.    JONES   AND   ROWLAND  [CHAP.   IX 

all  reasonable  acts  for  the  further  conveyance  of  the  premises.  The 
pleadings  further  disclose,  that  there  was  a  request  made  by  John 
King  the  ancestor,  to  Griffith,  to  levy  a  fine :  that  no  fine  was  levied : 
that  J.  King  the  ancestor  died;  and  the  premises  descended  to  the 
plaintiff  as  the  heir  of  John  King,  and  the  plaintiff  has  since  been 
evicted :  and  the  question  is,  whether  the  plaintiff  can  sustain  this 
action.  It  was  admitted  that  this  is  a  covenant  which  runs  with  the 
land.  Under  this  covenant  th€  heir  might  call  for  further  assur- 
ances, even  to  levy  a  fine :  he  certainly  might  have  called  for  the  re- 
moval of  a  judgment,  or  other  encumbrances.  It  appears  that  John 
King  the  ancestor  was  a  willing  purchaser :  he  paid  his  purchase- 
money,  relying  on  the  vendor's  covenant :  he  required  him  to  perform 
it,  but  gave  him  time,  and  did  not  sue  him  instantaneously  for  his 
neglect,  but  waited  for  the  event.  It  was  wise  so  to  do,  until  the 
ultimate  damage  was  sustained;  for  otherwise  he  could  not  have  re- 
covered the  whole  value:  the  ultimate  damage,  then,  not  having 
been  sustained  in  the  time  of  the  ancestor,  the  action  remained  to 
the  heir  (who  represents  the  ancestor  in  respect  of  land,  as  the  ex- 
ecutor does  in  respect  of  personalty),  in  preference  to  the  executor. 
These  are  the  principles  of  the  case;  how  are  the  authorities?  There 
are  few  old  authorities  directly  in  point,  but  there  is  one  recent  case 
that  is  directly  applicable.  The  old  authorities  are,  Titzherbert, 
N".  B.  Writ  of  Covenant,  p.  341  C.  "  If  a  man  make  a  covenant  by 
deed  to  another,  and  his  heirs,  to  enfeoff  him  and  his  heirs  of  the 
manor  of  D,  &c.,  now,  if  he  will  not  do  it,  and  he  to  whom  the  cove- 
nant is  made  dieth,  his  heir  shall  have  a  writ  of  covenant  upon  that 
deed  :  "  he  cites  the  Case  of  Sir  Anthony  Cool-,  Dy.  337;  also  reported 
in  Anders.  53.  [Here  his  Lordship  read  the  case.]  The  recent 
decision  is  that  of  Kingdon  v.  Nottle,  last  Easter  Term,  1  Maule  & 
Selwyn,  355,  wherein  the  Court  of  King's  Bench  held  that  the  ex- 
ecutor could  not  recover  upon  a  breach  of  the  defendant's  covenant 
with  the  testator,  that  he,  the  defendant,  had  a  good  title  to  convey, 
the  testator  having  sustained  no  damage  in  his  lifetime;  therefore  it 
follows  that  the  heir  might  so  recover.  The  court  there  follow  the 
doctrine  of  Lucy  v.  Levingfon,  and  they  advert  to  the  circumstance 
which  differs  that  case  from  this,  that  there  the  ultimate  damage 
was  sustained  in  the  time  of  the  ancestor,  and  therefore  the  land  did 
not  descend  to  the  heir;  consequently  the  covenant,  which  runs  with 
the  land,  did  not  descend  to  the  heir.  The  consequence  is,  that 
this  judgment  ought  not  to  be  arrested,  and  that  the  rule  must  be 
discharged.  Rule  discharged. 


KINGDON    V.    NOTTLE  571 

KINGDOM  V.  NOTTLE 
4  M.  &  S.  53.    1815. 

Covenant  by  the  plaintiff  as  devisee  of  Ricliard  Kingdon ;  and  the 
plaintiff  declares  that  by  indentures  of  lease  and  release  of  the  11th 
and  12th  of  May,  1780,  the  defendant  conveyed  to  K.  Kingdon  in  fee 
a  fourth  part  of  certain  lands  therein  particularly  described,  with  a 
proviso  for  redemption  upon  payment  of  £450;  and  that  the  de- 
fendant covenanted  for  himself,  his  heirs,  executors,  and  administra- 
tors, with  R.  Kingdon,  that  he  the  defendant  was  at  the  time  of  the 
execution  of  the  indenture  seised  of  and  in  the  premises  of  a  good  and 
indefeasible  estate  of  inheritance  in  fee  simple;  and  that  he  had  good 
right  to  convey  the  same  to  R.  Kingdon  and  his  heirs;  and  then 
the  plaintiff  avers  that  R.  Kingdon,  on  the  3d  of  May,  1791,  duly 
made  his  will,  &c.,  and  thereby  devised  the  same  premises  to  her  in 
fee,  and  died  seised,  and  that  she  (the  plaintiff)  entered  into  the 
premises,  and  became  and  was  and  continually  hath  been  possessed 
thereof,  and  seised  of  and  entitled  to  all  such  estate  and  interest  of 
and  in  the  same  as  R.  Kingdon  had  in  his  lifetime,  and  at  the  time 
of  his  death,  and  assigns  for  breach,  1st,  that  the  defendant,  at  the 
time  of  the  execution  of  the  indenture,  was  not  seised,  &c.,  2dly,  that 
he  had  not  good  right  to  convey  to  R.  Kingdon  and  his  heirs,  &:c. 
And  so  the  plaintiff  says,  that  by  reason  thereof  the  premises  are  of 
much  less  value,  to  wit,  less  by  £2,000  to  the  plaintiff  than  they 
otherwise  would  be,  and  that  she  hath  not  been  able  to  sell,  and  hath 
been  prevented  and  hindered  from  gelling  the  same,  for  so  large  a 
price  or  so  beneficially  and  advantageously  as  she  otherwise  might 
have  done.  And  so  she  saith  that  the  defendant  hath  not  kept  his 
covenant  so  made  with  R.  Kingdon,  but  to  keep  the  same  with  R. 
Kingdon  in  his  lifetime,  and  the  plaintiff,  since  his  death,  hath 
wholly  refused. 

Demurrer  assigning  for  cause,  1st,  that  it  appears  by  the  declara- 
tion that  the  supposed  breaches  of  covenant  therein  assigned  were 
committed  in  the  lifetime  of  R.  K.,  before  the  plaintiff  had  any  estate 
or  interest  in  the  premises;  and  also,  that  it  does  not  appear  by  tlic 
declaration  that  R.  K.  was  at  any  time  disturbed  or  interrupted  in 
the  enjoyment  of  the  premises  by  the  defendant  or  any  other  person, 
or  sustained  or  could  have  sustained  any  damage  by  the  same  sup- 
posed breaches  of  covenant  or  either  of  them,  and  also  for  that  it  is 
not  alleged  that  the  plaintiff  hath  at  any  time  since  the  death  of 
R.  K.  been  interrupted  or  disturbed  in  the  enjoyment  of  the  prem- 
ises, or  any  part  thereof,  or  hath  sustained  any  damages  from  the 
supposed  breaches  of  covenant  or  either  of  them;  and  also  that  it 
does  not  appear  that  any  person  hath  refused  to  purchase  the  prem- 
ises on  account  of  the  supposed  breaches  of  covenant,  and  also  that 
the  allegations  that  the  premises  are  of  much  less  value  than  they 


672  GREENBY   AND    KELLOGG    V.    WILCOCKS        [CHAP.    IX 

Otherwise  would  be,  and  that  the  plaintiff  hath  not  been  able  to  sell, 
and  hath  been  prevented  and  hindered  from  selling  the  same  for  so 
large  a  price  or  so  beneficially  and  advantageously  as  she  otherwise 
might  have  done,  are  too  general,  and  do  not  give  the  defendant 
sufficient  notice  of  the  supposed  damage. 

Joinder. 

Lord  Ellenbokough,  C.  J.  The  rule  with  respect  to  the  executor's 
right  to  sue  upon  breaches  of -contract  made  with  the  testator  was 
considered  in  the  former  case  of  Kingdon  v.  Nottle  as  subject  to 
some  qualification;  and  in  a  still  more  recent  case,  Chamberlain  v. 
Williamson,  2  M.  &  S.  408,  it  was  considered  that  he  could  only  re- 
cover in  respect  of  such  breach  as  was  a  damage  to  the  personal  es- 
tate. But  here  the  covenant  passes  with  the  land  to  the  devisee, 
and  has  been  broken  in  the  time  of  the  devisee;  for  so  long  as  the 
defendant  has  not  a  good  title,  there  is  a  continuing  breach;  and  it 
is  not  like  ^  covenant  to  do  an  act  of  solitary  performance,  which, 
not  being  done,  the  covenant  is  broken  once  for  all,  but  is  in  the 
nature  of  a  covenant  to  do  a  thing  toties  quoties,  as  the  exigency 
of  the  case  may  require.  Here,  according  to  the  letter,  there  was  a 
breach  in  the  testator's  lifetime;  but  according  to  the  spirit,  the 
substantial  breach  is  in  the  time  of  the  devisee,  for  she  has  thereby 
lost  the  fruit  of  the  covenant  in  not  being  able  to  dispose  of  the 
estate. 

Le  Blanc,  J.  If  the  covenant  is  to  cease  with  the  breach  of  it, 
then  if  it  be  broken,  and  the  covenantee  die  immediately  after,  the 
covenant  will  be  gone;  and  yet  the  injury  arising  from  the  breach 
would  accrue  altogether  to  the  devisee. 

Dampier,  J.  This  is  a  covenant  which  runs  with  the  land;  but 
if  it  may  be  broken  but  once,  and  ceases  eo  instanti  that  it  is  broken, 
how  can  it  be  a  covenant  which  runs  with  the  land? 

Judgment  for  the  plainiijf} 


GREENBY  and  KELLOGG,  Administrators  v.   WILCOCKS 
2  Johns.  (N.  Y.)   1.     1806. 

This  was  an  action  of  covenant.  The  declaration  set  forth  a  deed, 
made  the  30th  of  August,  1792,  between  the  defendant,  of  the  one 
part,  and  Carlile  Pollock,  of  the  other  part,  by  which  the  defendant 
conveyed  to  Pollock,  certain  lots  of  land,  in  the  county  of  Cayuga. 
The  deed  contained  the  usual  covenants,  on  the  part  of  the  grantor 
with  the  grantee,  his  heirs  and  assigns;  namely,  that  the  grantor 
was  well  seised  in  fee,  &c.,  had  power  and  right  to  grant  and  convey ; 
that  the  grantee  should  quietly  enjoy,  free  from  encumbrances,  &c., 

1  But  see  Spoor  v.  Green.  L.  U.  9  Exch.  99;  Turner  v.  Moon,  [1901]  2  Ch. 
825,  829.    Compare  St.  44  &  45  Vict.,  c.  41.  §  7,  Subd.  6. 


GREENBY   AND    KELLOGG    V.    WILCOCKS  573 

and  a  warranty  against  tho  grantor  and  liis  hoirs,  and  all  persons 
whomsoever.  The  declaration  further  stated,  that  Pollock  entered, 
and  was  posssessed  of  the  premises;  and  afterwards,  on  the  17th  July, 
1793,  he  and  his  wife  granted  and  conveyed  one  of  the  lots  of  land, 
to  Abraham  Hardenbergh,  who  entered,  and  was  possessed  thereof; 
and  being  so  seised  and  possessed  thereof,  afterwards,  on  the  5th 
July,  1794,  granted  and  conveyed  the  same  lot  to  Kellogg,  the  in- 
testate. The  plaintiff  then  averred,  that  at  the  time  of  executing  the 
deed  to  Pollock,  the  defendi^nt  "  was  not  seised  and  possessed  of  any 
right,  title,  or  interest  whatsoever,  of,  and  in  the  said  last  described 
lot  of  land,  but  the  title  to  the  same  lot  of  land,  was  vested  in  one 
John  H.  Holland;  nor  had  the  defendant  any  lawful  power  or 
authority,  to  sell  and  convey  the  same  as  aforesaid;  nor  hath  the 
defendant  secured  and  defended  the  said  Pollock,  Hardenbergh,  or 
Kellogg,  or  either  of  them  or  their  assigns,  or  the  plaintiffs,  in  the 
quiet  possession  of  the  said  lot  of  land ;  but,  on  the  contrary,  the  said 
Kellogg,  afterwards,  in  his  lifetime,  to  wit,  on  the  5th  July,  1794, 
was  expelled  from,  and  dispossessed  of,  the  said  lot  of  land;  of  all 
which,  the  said  defendant  had  notice,  (Src,  and  so  the  plaintiffs  say, 
that  though  often  requested,  &c.,  the  defendant  hath  not  kept  his 
said  covenant,  so  made  and  entered  into.,  with  the  said  Pollock,"  &c. 

To  this  declaration,  the  defendant  demurred,  and  the  plaintiffs 
joined  in  demurrer. 

Spencer,  J.  The  plaintiff's  right  to  judgment,  must  rest  on  the 
covenants  of  seisin,  and  power  to  sell  and  convey  in  fee-simple.  The 
eviction  stated  in  the  declaration,  does  not  appear,  nor  is  it  averred, 
to  have  taken  place  by  process  of  law;  covenants  for  quiet  enjoy- 
ment and  a  general  warranty,  extend  only  to  lawful  evictions.  Some 
of  the  cases  admit,  that  the  action  lies  for  breach  of  covenant  for 
quiet  enjoyment,  if  the  person  to  whom  the  right  belongs  oust  the 
possessor.  In  the  present  case,  it  is  not  alleged,  that  the  ouster  was 
committed  by  any  person  having  right,  or  superior  title. 

It  is  objected,  that  the  plaintiffs  cannot  recover  on  the  covenants  of 
seisin,  and  that  the  grantor  had  power  to  convey,  because,  it  is  alleged 
in  the  declaration,  that  there  was  a  total  defect  of  title  in  the  de- 
fendant, at  the  time  he  executed  the  deed,  and  that  the  covenants 
then  broken,  could  not  be  assigned  over  by  the  first  grantee. 

There  is  great  force  in  this  objection,  and  it  appears  to  me  conclu- 
sive. Choses  in  action  are  incapable  of  assignment,  at  the  common 
law;  and  what  can  distinguish  these  covenants,  broken  the  instant 
they  were  made,  from  an  ordinary  chose  in  action?  The  covenants, 
it  is  true,  are  such  as  run  with  the  land,  but  here  the  substratum 
fails,  for  there  was  no  land,  whereof  the  defendant  Avas  seised,  and 
of  consequence,  none  that  he  could  aliene :  the  covenants  are,  there- 
fore, naked  ones,  uncoupled  with  a  right  to  the  soil.  This  point  was 
determined  in  the  case  of  Leivis  v.  Ridge,  Cro.  Eliz.  863.  The  court 
held,  in  that  case,  that  the  covenant  being  broken,  before  the  plain- 


574  GREENBY   AND    KELLOGG    V.    WILCOCKS        [CHAP.   IX 

tiff's  purchase,  and  so,  tliougli  the  covenants  were  against  the  pre- 
cise encumbrance,  that  it  was  a  thing  in  action,  which  could  not  be 
transferred  over,  and  judgment  was  given  for  the  defendant  on  de- 
murrer. I  cannot  find  that  this  case  has  been  overruled.  Spencer's 
Case,  15  Co.  17,  presents  a  very  distinct  question,  from  the  one  now 
under  consideration;  it  involved  only  the  case  of  an  assignee  of  a 
ierm,  sued  by  the  lessor,  with  respect  to  the  covenants,  which  run- 
ning with  the  land,  are  imposed  upon  the  assignee. 

I  am,  therefore,  of  opinion,  that  the  defendant  must  have  judg- 
ment. 

Kent,  C.  J.,  Thompson,  J.,  and  Tompkins,  J.,  declared  themselves 
to  be  of  the  same  opinion. 

Livingston,  J.  I  cannot  assent  to  this  opinion.  One  of  the  cove- 
nants declared  on,  is  that  of  a  seisin  in  fee  of  the  grantor.  It  since 
appearing,  that  he  was  not  thus  seised,  and,  of  course,  that  this  cove- 
nant was  broken  immediately  on  executing  the  conveyance,  it  is  now 
said  that  it  could  not  be  transferred,  so  as  to  entitle  the  assignee 
to  an  action  for  the  breach  of  it. 

One  would  naturally  suppose,  that  every  covenant  in  a  deed  con- 
veying an  estate  of  inheritance,  would  pass  with  the  land,  and  con- 
fer on  the  owner,  however  remote  from  a  former  grantor,  a  remedy 
for  an  unsatisfied  violation  of  any  of  them,  without  inquiring  when 
the  right  of  action  first  accrued.  They  all  extend,  by  express  terms, 
as  well  to  assigns  ad  infimtum,  as  to  the  first  grantee.  It  comports, 
then,  with  the  contract,  and  is  in  itself  reasonable,  that  they  should 
all  form  a  part  of  every  grantee's  security;  nor  can  it  be  right,  that 
those  who  come  in  under  this  covenant,  which  may  be  the  only  one 
in  a  conveyance,  shall  not  be  able  to  recover  any  part  of  a  large 
consideration,  merely  because  an  alienation  intervened,  prior  to  a 
discovery  of  any  defect  of  title.  By  this  means  a  most  useful 
covenant,  and  in  daily  use,  will  become  a  dead  letter,  before  it  can  be 
enforced,  as,  very  often,  repeated  sales  take  place,  before  a  title  is 
discovered  to  be  bad.  We  are,  however,  told,  that  such  is  the  law, 
and  are  referred  to  some  authorities.  Between  the  case  of  Lewis 
V.  Ridge  and  this  one,  there  is  a  distinction  which  Avill  be  an  excuse 
for  not  applying  it  in  a  way,  that  the  court  could  not  have  intended, 
and  which  can  answer  no  other  purpose,  but  that  of  depriving  an 
innocent  purchaser  of  his  remedy,  and  of  annulling  (which  courts 
sometimes  take  the  liberty  of  doing)  a  contract,  to  which  the  parties 
have  solemnly  bound  themselves.  The  distinction  is  this.  In  the  case 
from  Croke,  the  covenant  (which  was  to  discharge  all  Statutes, 
&c.,  in  two  years)  was  not  only  broken,  but  this  was  l-noivn  to  the 
purchaser;  for  a  Statute,  which  was  the  encumbrance  complained 
of,  was  matter  of  record,  and  the  land,  at  the  time  of  sale,  was 
actually  extended  for  its  satisfaction.  It  was,  therefore,  thought, 
that  the  plaintiff  had  bought  a  chose  in  action,  and  the  court  (which 
was  less  indulgent  formerly  than  at  present,  to  these  bargains)  set 


GREENBY    AND    KELLOGG    V.    WILCOCKS  575 

• 
its  face  against  him.  But  in  cases  of  the  kind  before  us,  such 
knowledge  can  rarely  exist,  for  as  soon  as  a  title  is  discovered  to  be 
questionable,  there  will  generally  be  a  stop  to  farther  alienation. 
The  reasoning,  therefore,  in  this  case,  does  not  apply;  for  why 
punish  a  person  for  buying  a  chose  in  action,  by  a  forfeiture  of  his 
remedy,  when  he  neither  knew,  nor  suspected,  at  the  time,  that  such 
a  right  existed?  It  might  be  asked,  What  makes  a  covenant  more 
a  chose  in  action  after,  than  before  its  breach?  In  all  pui-chases 
in  fee,  has  not  the  land  always  been  considered,  as  it  really  is,  the 
thing  bargained  for,  and  that  the  covenants  without  distinction, 
necessarily  pass  with  it?  Thus  we  shall  get  rid  altogether  of  the 
idea  of  purchasing  a  thing  in  action,  which  can  only  be  entertained 
by  a  fanciful  distinction  between  covenants  broken,  and  those  which 
may  be  broken  in  future.  Is  there  in  reality,  anj'thing  more 
obnoxious  or  criminal  in  assigning  the  one,  than  the  other?  If 
there  be  any  turpitude  in  the  thing,  why  do  courts,  nowadays,  go 
so  far  in  supporting  transfers  of  cltoses  in  action,  as  to  protect  the 
rights  of  an  assignee,  though  not  a  party  to  the  record?  Another 
case,  more  recent,  that  of  Andrew  v.  Fearce,  1  Bos.  and  Pull.  Xew 
Eep.  158,  which  Avas  also  relied  on,  proceeded  on  the  ground  of  the 
lease  being  absolutely  void,  prior  to  its  assignment,  and  that,  there- 
fore, no  interest  in  the  land,  could  pass  under  it;  of  course,  there 
remained  only  a  right  of  action  to  sell.  Now,  though  the  party 
in  that  case  ought,  perhaps,  to  have  been  estopped,  from  saying  that 
nothing  passed  by  his  deed,  yet  taking  this  decision  as  we  find  it, 
and  even  receiving  it,  late  as  it  is,  as  authority,  it  makes  in  favor 
of  the  plaintiff.  From  the  judgment  delivered  by  Sir  James  Mans- 
field, and  the  reasonings  of  all  the  counsel,  it  is  evident,  that  if 
any  interest  in  the  land  had  passed  with  the  assignment,  the  cove- 
nant whenever  broken,  would  have  passed  with  it,  and  the  action 
been  supported.  If  so,  how  does  it  appear,  that  nothing  passed 
by  the  deed  of  Wilcocks,  or  by  the  one  to  the  plaintiffs'  intestate? 
Though  it  was  not  a  fee  simple  (which  must  be  the  only  meaning 
of  the  averment  in  the  declaration),  some  smaller  estate  or  interest 
may  have  passed,  which  would  have  carried  the  covenant  of  seisin 
along  with  it,  and  been  sufficient  to  take  this  case  out  of  the  principle 
of  Andrew  v.  Pearce. 

But  this  is  not  the  ground  on  Avhicli  I  rest;  it  is  that  of  the 
contract  itself,  by  the  words  of  which  all  the  covenants  passed  to 
every  grantee  ad  infinitum,  and  gave  him,  of  course,  an  action  in 
his  own  namey  against  any  preceding  grantor,  whether  a  breach 
happen  before  or  after  the  assignment,  provided  no  satisfaction 
has  been  obtained  from  it  in  another  name.  Xor  is  it  without 
authority  that  this  ground  is  taken,  for  in  the  Ca.sc  of  Spencer, 
in  Sir  Edward  Coke's  reports,  it  was  resolved,  "  that  if  the  assignee 
of  a  lessee  be  evicted,  he  shall  have  a  writ  of  covenant,  for  it  is 
reasonable  if  he  be  evicted,  that  he  shall  take  such  benefit  of  the 


576  CLARK   AND   ANOTHER    V.    SWIFT  [CHAP.   IX 

demise,  as  the  first  lessee  might,  and  the  lessor  hath  no  other 
prejudice,  than  what  his  especial  contract  with  the  first  lessee, 
hath  bound  him  to."  In  this  lease  it  is  worthy  of  remark  too, 
that  there  was  no  express  covenant,  but  only  words  which  implied  one. 
It  is  not  stated,  it  is  true,  when  the  breach  took  place,  but  the  lessor 
v/ithout  any  such  distinction,  is  placed,  in  relation  to  the  sub-tenant, 
on  precisely  the  same  footing,  as  it  respected  a  remedy  on  the  lease, 
as  he  stood  in  with  regard  to  his  immediate  lessee.  The  court  must 
have  considered  the  contract  of  assignment  as  entire,  and  that  with 
it,  not  only  the  land,  but  all  the  agreements  of  the  lessor,  passed; 
for  it  is  not  easy  to  be  understood,  how  the  covenant  of  warranty 
should  pass  to  the  grantee,  as  it  is  admitted  it  did,  so  as  to  give 
him  a  right  to  sue  in  his  own  name,  and  yet  that  a  different  rule 
is  to  be  applied  as  to  the  covenant  of  seisin. 

I  concur  in  the  opinion  delivered,  as  to  the  mode  of  stating  an 
eviction,  in  which  respect  the  declaration  is  imperfect;  but  the 
breach  of  the  covenant  of  seisin  being  well  assigned,  the  plaintiff, 
in  my  opinion,  is  entitled  to  judgment. 

Judgment  for  the  defendant.^ 


CLARK  AND  Another  v.  SWIFT 
3  Met.  (Mass.)  390.     1841. 

Covenant  broken.  The  declaration  alleged  that  the  defendant, 
on  the  2d  of  June,  1815,  by  his  deed  conveyed  certain  land  in 
Andover  to  Thomas  Holt,  and  in  said  deed  covenanted  with  Holt, 
his  heirs  and  assigns,  that  the  conveyed  premises  were  free  from 
all  encumbrances :  That  the  plaintiffs,  by  virtue  of  a  conveyance 
of  said  land  by  Holt,  and  by  sundry  subsequent  conveyances  thereof, 
have  acquired  title  thereto,  and,  on  the  5th  of  November,  1830, 
became  the  assigns  of  the  defendant,  and  ought  to  have  and  enjoy 
the  land  free  of  all  encumbrances,  according  to  the  defendant's  cove- 
nant aforesaid :  That  the  land,  when  the  defendant  so  conveyed  it 
to  Holt,  was  not  free  from  all  encumbrances,  and  never  since  has 
been;  but  that  the  defendant,  on  the  9th  of  April,  1814,  conveyed 
to  Ralph  H.  Chandler,  his  heirs  and  assigns,  a  right  of  way  over 
said  land,  and  "  the  privilege  of  going  to  and  using  the  well  and 
pump  "  upon  said  land ;  which  rights  "  still  exist,  and  did  exist  at 
the  time  of  making  said  deed  to  said  Holt,  and  have  existed  ever 
since,"  as  an  encumbrance  on  the  land. 

At  the  trial  before  Putnam,  J.,  the  facts  stated  in  the  plaintiffs' 
declarations  were  proved  or  admitted,  and  a  verdict  was  returned 

1  The  principal  case  has  had  a  large  following  in  the  United  States.  But 
see  Martin  v.  Baker,  5  Blackf.  (Ind.)  232;  Allen  v.  Kennedy,  91  Mo.  324; 
Coleman  v.  Lucksinger.  224  Mo.  1;  Backm  v.  McCoy,  3  Ohio  211;  Mecklem 
V.  Blake,  22  Wis.  495.  For  statutory  changes,  see  Rawle,  Covenants  for 
Title,  5th  ed.,  §  211,  and  Geiszler  v.  DeGraaj,  166  N.  Y.  339,  post  p.  582. 


CLARK    AND    ANOTHER    V.    SWIFT  577 

for  the  plaintiffs,  subject  to  the  opinion  of  the  whole  court,  whether 
they  could  maintain  the  action. 

Several  points  of  defence,  which  were  raised  on  the  evidence,  and 
ruled  against  the  defendant  at  the  trial,  are  here  omitted,  as  it  became 
unnecessary  for  the  court  to  decide  upon  them. 

This  case  was  argued  at  Boston,  January  21,  1841. 

Wilde,  J.  At  the  trial  of  this  cause  several  questions  of  law 
were  raised  and  reserved  for  the  consideration  of  the  court,  most 
of  which,  according  to  the  view  we  have  taken  of  the  case,  become 
immaterial,  as  we  consider  one  objection  to  the  form  of  the  action 
conclusive  in  favor  of  the  defendant. 

The  action  is  founded  on  the  alleged  breach  of  the  defendant's 
covenant  against  encumbrances  in  his  deed  to  Thomas  Holt  of  the 
premises  described  in  the  writ,  and  from  whom  the  plaintiffs  derive 
their  title.  The  breach  alleged  is,  that  at  the  time  of  executing 
said  deed  to  the  said  Holt,  the  land  conveyed  to  him  was  not  free 
from  all  encumbrances,  but  that  the  defendant  had  before  that  time 
granted  a  passage  and  right  of  way,  over  and  along  said  land  con- 
veyed, to  one  Kalph  H.  Chandler;  which  encumbrance,  it  is  averred, 
still  exists,  and  did  exist  at  the  time  of  making  said  deed  to  said 
Holt,  and  has  existed  ever  since.  Thus  it  appears,  by  the  plaintiffs' 
own  showing,  that  the  covenant  on  which  they  rely  was  broken 
as  soon  as  made;  and  that  a  covenant  thus  broken  does  not  run 
with  the  land,  is  a  well-established  doctrine  of  the  common  law. 
A  right  of  action  for  the  breach  of  this  covenant  immediately  ac- 
crued in  favor  of  Holt,  and  this  chose  in  action,  like  all  other  choses 
in  action,  is  not  assignable,  so  as  to  authorize  the  assignee  to  main- 
tain an  action  in  his  own  name.  An  assignee  cannot  sue  upon  a 
breach  of  covenant  that  happened  before  his  time.  Com.  Dig. 
Covenant,  B.  3.  Bac.  Ab.  Covenant,  E.  5.  The  case  of  Lucy  v. 
Levington,  2  Lev.  26,  is  a  leading  authority  on  this  point,  in  which 
it  was  decided  that  an  action  by  the  executor  of  the  covenantee  upon 
a  covenant  for  quiet  enjoyment  of  land  conveyed  was  well  brought; 
the  breach  assigned  being  that  the  plaintiff's  testator  Avas  evicted 
in  his  lifetime,  and  so  the  covenant  being  broken,  did  not  go  with 
the  land  to  the  heir.  So  in  Leives  v.  Ridge,  Cro.  Eliz.  863,  which 
was  an  action  by  an  assignee,  on  a  covenant  which  had  been  broken 
l)efore  the  assignment,  it  Avas  held  that  for  such  a  breach,  being  a 
thing  in  action  not  transferable  by  law,  an  action  was  not  main- 
tainable in  the  name  of  the  assignee. 

A  different  doctrine,  however,  was  laid  down  in  the  case  of  Kingdon 
v.  Notile,  4  M.  (S:  S.  53,  in  which  it  was  held  that  an  action  might 
be  maintained  by  a  devisee  of  the  grantee  of  land,  on  the  covenant 
or  seisin,  although  broken  in  the  lifetime  of  the  testator;  the  breach 
being  considered  as  continuing  in  the  time  of  the  devisee.  It  was 
also  decided  in  Kingdon  v.  Notile,  1  M.  c^-  S.  355,  that  for  such  a 
breach  of  covenant  no  action  could  be  maintained  by  the  executor 


578  CLARK   AND   ANOTHER    V.    SWIFT  [CHAP.   IX 

of  the  grantee.  But  it  seems  difficult  to  reconcile  these  decisions 
with  the  former  authorities,  and  with  the  well  known  rule  of  the 
common  law,  that  choses  in  action  are  not  assignable;  and  they  are 
certainly  against  the  current  of  subsequent  authorities. 

In  the  case  of  Bichford  v.  Page,  2  Mass.  455,  it  was  decided  that 
the  covenant  of  seisin,  having  been  broken  immediately  on  the  execu- 
tion of  the  deed,  was  then  a  chose  in  action,  and  not  assignable. 
So  in  Prescott  v,  Trueman,  4, Mass.  627,  it  was  held  that  the  cove- 
nant against  encumbrances  is  broken  immediately  by  any  subsisting 
encumbrance.  And  recently,  in  Thayer  v.  Clemence,  22  Pick.  493, 
494,  the  same  doctrine  is  laid  doAvn  by  the  Chief  Justice,  in  delivering 
the  opinion  of  the  court :  "  the  usual  covenants  in  a  deed  of  war- 
ranty, are,  that  I  am  seised,  &c.,  that  I  have  good  right,  &c.,  that 
the  premises  are  free  of  all  encumbrances.  These,"  he  says,  "  are 
all  in  prcesenti,  and  if  the  facts  covenanted  to  be  true  are  not  so, 
the  covenants  are  broken  when  made,  the  right  to  enforce  them  is  a 
chose  in  action,  and  cannot  be  assigned  so  as  to  enable  an  assignee 
to  bring  an  action  in  his  own  name." 

The  same  doctrine  is  held  in  New  York :  Greenhy  v.  Wilcoclcs, 
2  Johns.  1 ;  IlamiUon  v.  Wilson,  4  Johns.  72 ;  Kane  v.  Sanger,  14 
Johns.  89;  and  in  New  Jersey:  Chapman  v.  Holmes,  5  Halst.  20; 
Garrison  v.  Sandford,  7  Halst.  261 ;  and  in  Vermont :  Garfield  v. 
Williams,  2  Verm.  327 ;  and  in  Connecticut :  Mitchell  v.  Warner, 
5  Conn.  497.  In  the  latter  case  Chief-Justice  Hosmer  examined 
the  doctrine  and  the  authorities  very  fully,  and  with  great  ability; 
and  particularly  the  case  of  Kingdon  v.  Nottle.  "  From  the  opinion 
in  that  case,"  he  declares,  "  I  am  compelled  to  dissent  in  omnibus. 
First,  I  affirm  that  the  novel  idea  attending  the  breach  in  the 
testator's  lifetime,  by  calling  it  a  continuing  breach,  and  therefore 
a  breach  to  the  heir  or  devisee  at  a  subsequent  time,  is  an  ingenious 
suggestion,  but  of  no  substantial  import,  ^very  breach  of  a  con- 
tract is  a  continuing  breach,  until  it  is  in  some  manner  healed; 
but  the  great  question  is,  To  whom  does  it  continue  as  a  breach? 
The  only  answer  is.  To  the  person  who  had  title  to  the  contract, 
when  it  was  broken.  A  second  supposed  breach  is  as  futile  as  the 
imaginery  unbroken  existence  of  a  thing  dashed  in  pieces.  It  has  no 
analogy  to  a  covenant  to  do  a  future  act  at  different  times,  which 
may  undergo  repeated  breaches."  He  concludes,  therefore,  that  the 
determination  in  the  case  of  Kingdon  v.  Nottle  "is  against  the 
ancient,  uniform,  and  established  law  of  "Westminster  Hall,  and 
against  well-settled  principles  and  decided  cases  in  the  surrounding 
States." 

These  objections  to  the  decision  in  the  case  reviewed  are  certainly 
very  forcibly  expressed.  That  decision,  as  Chancellor  Kent  remarks, 
was  severely  criticised.  But  we  concur  in  the  opinion  that  the 
decision  cannot  be  reconciled  with  a  well-established  principle  of  the 
common  law.     The  distinction  on  which  the  principle,  that  choses 


CLARK   AND   ANOTHER    V.    SWIFT  579 

in  action  are  not  assignable,  is  evaded,  is  not  well  founded. 
Chancellor  Kent  says,  "  The  reason  assigned  for  the  decision  is  too 
refined  to  be  sound."  4  Kent  Com.  (3d.  ed.)  472.  There  was  not 
in  that  case,  and  there  could  not  have  been,  but  one  breach  of  the 
covenant  of  seisin.  "  It  was  single,  entire,  and  perfect,  in  the  first 
instance;"  and  thereupon  a  right  of  action  vested  in  the  testator; 
and,  unless  this  right  could  by  law  be  transferred  to  the  devisee, 
no  action  in  his  name  could  be  maintained  in  a  court  of  law.  This 
rule  as  to  clioses  in  action  is  a  technical  rule,  it  is  true,  and  does  not 
affect  the  merits  of  the  case.  But  technical  rules,  and  rules  as  to  the 
forms  of  proceedings,  must  be  observed,  Avithout  regard  to  the  conse- 
quences which  may  follow  in  particular  cases ;  otherwise,  the  stability 
of  judicial  decisions,  and  the  certainty  of  the  law,  cannot  be  preserved. 
As  to  the  rule  in  question,  it  interposes  a  formal  difficulty  only; 
and  it  is  no  actual  obstruction  to  the  due  administration  of  justice. 
The  assignment  of  a  chose  in  action  is  valid  in  equity,  and  courts 
of  law  will  take  notice  of  equitable  assignments,  made  bona  fide  and 
for  a  valuable  consideration,  and  will  allow  the  assignee  to  maintain 
an  action  in  the  name  of  the  assignor. 

In  the  present  case,  hoA\^ver,  the  action  could  not  be  maintained, 
although  it  had  been  brought  in  the  name  of  Holt,  the  original 
grantee;  because  it  is  clear  that  the  action  accrued  to  him  more  than 
twenty  years  before  the  present  action  was  brought,  if  in  fact  there 
was  an  existing  encumbrance  on  the  granted  premises,  at  the  time 
of  the  grant.  The  action,  therefore,  would  be  barred  by  the  Statute 
of  Limitations.  It  is  true,  that  if  such  an  action  had  been  brought 
before  any  disturbance  of  the  possession,  and  before  the  encumbrance 
had  been  removed,  the  plaintiffs  would  have  been  entitled  to  only 
nominal  damages;  but  then  twenty  years  are  allowed,  in  such  a  case, 
after  the  breach  of  the  covenant,  for  the  party  to  clear  away  the 
encumbrance,  and  to  entitle  himself  to  a  full  indemnity.  And  if  he 
lies  by  until  the  limited  time  expires,  without  removing  the  encum- 
brance and  commencing  his  action,  the  Statute  of  Limitations  will 
certainly  be  a  good  bar. 

The  plaintiffs'  only  remedy,  if  they  have  any,  is  on  the  covenant 
of  warranty.  That  covenant  runs  with  the  land;  and  if  the  plain- 
tiffs had  been  evicted  by  a  paramount  title,  they  could  undoubtedly 
maintain  an  action  for  the  breach  of  that  covenant,  in  their  own 
names.  Whether  the  facts  reported  show  such  a  disturbance  of  the 
possession  as  would  bo  considered  equivalent  to  an  eviction  by  a 
title  paramount,  is  a  question  upon  which  at  present  we  give  no 
opinion.  The  question  cannot  be  raised  in  this  case,  unless  the 
plaintiffs  should  move  for  leave  to  amend  their  declaration,  which 
may  be  allowed  on  such  terms  as  the  court  may  hereafter  direct. 
(On  motion  the  plaintiffs  had  leave  to  aiuoiid  tlicir  declaration.)^ 

1  See,  accord,  Mitchell  v.  Warner,  5  Conn.  497  (1S25).  Contra,  M'Crady 
V.  Brisbane,  1  Nott  &  McC.  (So.  Car.  1S18). 


580  COLE   AND   WIFE    V.    KIMBALL  [CHAP.   IX 

COLE  AND  WIFE  V.  KIMBALL 

52  Vt.  639.     1880. 

Covenant.  The  declaration  counted  on  a  covenant  against  encum- 
brances in  a  deed  from  the  defendant  to  the  plaintiff  Florette.  The 
case  was  referred,  and  the  referee  reported  in  substance  as  follows : 

On  August  26,  1871,  the  defendant  by  warranty  deed  containing 
the  usual  covenants,  including  a  covenant  against  encumbrances, 
conveyed  to  the  plaintiff  Florette  certain  premises  in  Braintree  that 
had  been  conveyed  to  him  by  Mansel  HeseltoTi  and  wife;  and  said 
Florette,  in  payment  therefor,  conveyed  to  the  defendant  a  farm 
which  had  before  been  conveyed  to  her  by  her  father,  Leonard  Fish, 
and  with  her  husband  executed  to  him  a  promissory  note  for  $462, 
which  said  Leonard  afterwards  paid.  On  June  11,  1872,  the  plain- 
tiffs by  like  deed  conveyed  the  premises  to  Lucia  M.  Fish,  the  mother 
of  said  Florette,  and  wife  of  said  Leonard.  The  premises  when  con- 
veyed by  the  defendant  as  aforesaid,  were  subject  to  a  mortgage 
executed  by  Heselton  and  wife  to  Elihu  ,Hyde  in  1869,  conditioned 
for  the  payment  of  two  promissory  notes  for  $250  each,  payable 
in  one  and  two  years  respectively,  with  interest,  one  of  which  only 
had  been  paid.  In  December,  187.5,  Hyde  brought  a  petition  for 
foreclosure  against  the  Fish's  and  others,  but  not  against  the  Hesel- 
tons  nor  the  Coles,  and  in  the  following  January  obtained  a  decree 
for  $313.29,  the  sum  due  in  equity,  and  $28.55  costs,  to  be  paid 
before  January  1,  1877,  with  interest.  On  T^ovember  1,  1876,  Hyde 
sold  and  assigned  that  decree  to  Ephraim  Thayer  for  $350,  Thayer 
acting  therein  for  said  Leonard  and  at  his  request;  and  afterwards, 
and  before  this  action  was  brought,  said  Leonard,  acting  therein 
for  his  wife,  paid  Thayer  the  amount  of  the  decree  in  full,  with 
interest.  The  conveyance  from  said  Leonard  to  said  Florette,  and 
from  her  to  said  Lucia  were  without  consideration,  and  they  and 
the  holding  of  title  by  said  Florette  were  for  the  convenience,  and 
at  the  request,  of  the  Fish's,  said  Leonard  doing  all  the  business  in 
connection  therewith,  and  the  plaintiffs  having  nothing  to  do  with  it, 
except  to  execute  deeds,  &c.,  as  desired.  This  action  was  brought 
and  prosecuted  by  said  Lucia,  in  her  own  behalf  and  for  her  own 
benefit,  and  with  the  privity  and  consent  of  said  Leonard.  The 
referee  found  that  if  the  plaintiffs  were  entitled  to  recover,  they 
should  recover  $341.84,  with  interest  from  January  1,  1876. 

While  the  action  was  pending  the  Fish's,  in  consideration  that 
final  judgment  should  ultimately  be  rendered  therein  for  the  plain- 
tiffs for  the  full  amount  of  damages  found  by  the  referee,  filed  in 
court  a  release  of  the  defendant  from  all  causes  of  action  that  they 
or  either  of  them  had,  or  could  have,  in  their  own  names  to  recover 
damages  consequent  on  a  breach  of  any  of  the  covenants  in  his  deed 
to  said  Florette. 


COLE   AND   WIFE    V.    KIMBALL  581 

The  court  at  the  December  Term,  1879,  Powers,  J.,  presiding, 
rendered  judgment  on  the  report  for  the  plaintiffs  for  nominal 
damages  and  costs;  to  which  the  plaintiffs  excepted. 

The  opinion  of  the  court  was  delivered  by 

KoYCE,  J.  It  is  conceded  that  the  plaintiffs  are  entitled  to  nominal 
damages;  and  the  only  question  made  is,  whether  upon  the  facts 
found  by  the  referee  they  are  limited  to  the  recovery  of  such  damages, 
or  are  entitled  to  recover  the  amount  paid  to  redeem  the  premises 
from  the  Hyde  decree.  This  suit  was  brought  and  prosecuted  by 
Lucia  M.  Fish,  for  her  benefit,  with  the  privity  and  consent  of  her 
husband,  Leonard  Fish,  who  acted  for  her  in  paying  the  money 
to  redeem  the  premises  from  the  Hyde  decree.  Florette  D.  Cole 
held  the  title  to  the  premises  conveyed  to  her  by  the  defendant  as 
the  trustee  of  Leonard  and  Lucia  M.  Fish,  and  the  covenants  con- 
tained in  the  deed  from  the  defendant  to  Florette  D.  are  in  equity 
to  be  treated  as  covenants  for  the  benefit  of  the  cestuis  que  trust. 
All  the  interest  that  Florette  D.  had  in  said  covenants  passed  to 
Lucia  M.  Fish  by  the  deed  from  the  plaintiffs  to  her.  The  defendant 
is  liable  on  the  covenants  in  his  deed  to  protect  the  title  against  the 
encumbrances  that  were  upon  the  premises  described  in  the  deed 
at  the  time  of  its  execution.  The  covenant  against  encumbrances 
runs  with  the  land,  and  can  be  enforced  for  the  benefit  of  the  party 
holding  the  legal  title.  The  payment  of  the  amount  due  on  the 
Hyde  decree  was  not  a  voluntary  payment,  but  a  compulsory  one. 
Fish  was  obliged  to  make  it  to  save  his  title  to  the  premises.  The 
claim  to  indemnity  on  account  of  the  breach  of  the  covenants  of 
title  and  against  encumbrances  was  a  chose  in  action,  and  was  trans- 
ferred to  Lucia  M.  Fish  by  the  deed  from  the  plaintiffs  to  her;  and 
the  assignee  of  a  chose  in  action  has  the  right  (subject  to  the  right 
of  the  assignor  to  require  indemnity  against  costs)  to  sue  in  the  name 
of  the  assignor.  It  is  a  matter  of  indifference  to  the  defendant  to 
whom  he  pays,  if  he  is  fully  protected  against  any  further  liability. 
It  is  not  claimed  that  there  is  any  other  party  but  Leonard  Fish 
and  wife  that  could  make  any  claim  against  the  defendant  on  account 
of  his  covenants;  and  the  discharge  filed  in  the  case  is  a  full  protec- 
tion against  any  claim  that  they  might  otherwise  make.  The  rule 
of  law  that  limits  the  recovery  in  actions  of  covenant  against  encum- 
brances to  the  amount  paid  to  remove  the  encumbrance  was  adopted 
for  the  protection  of  the  covenantor,  for  until  full  payment  the 
liability  of  the  covenantor  would  continue.  The  cases  relied  upon 
by  the  defendant  differ  from  this  in  the  important  fact  that  in  none 
of  those  cases  did  it  appear  that  the  suit  was  being  prosecuted  for 
the  benefit  of  an  assignee  who  had  been  compelled  to  make  payment 
to  save  his  estate,  and  full  indemnity  had  been  tendered  to  the  cove- 
nantor. The  attempted  defence  is  purely  technical;  and  it  does  not 
appear  that  any  defence  which  the  defendant  might  have  made 
if  the  suit  had  been  in  the  name  of  Leonard  Fish  and  wife  was  not 


582  GEISZLER    V.    DE   GRAAF  [CHAP.   IX 

equally  available  to  him  in  tlie  present  suit.  In  Smith  v.  Perry, 
Admr.,  26  Vt.  279,  the  plaintiff  had  not  paid  the  judgment  recovered 
by  his  grantee  on  account  of  the  breach  of  his  covenant  of  title,  but 
the  court  allowed  a  full  recovery  to  be  had,  protecting  the  defendant's 
estate  against  further  liability  by  the  form  of  the  judgment  rendered. 
Here,  as  we  have  seen,  the  defendant  is  protected  by  the  discharge 
filed. 

Judgment  reversed, -and  judgment  for  the  largest  sum} 


GEISZLER  V.  DE  GRAAF  et  Al.,  as  Executoes 
166  N.  Y.  339.    1901. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  ISTovember  17,  1899, 
reversing  a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict 
directed  by  the  court,  and  granting  a  new  trial. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

O'Brien,  J.  The  plaintiff  is  the  remote  grantee  of  lands  which 
the  defendants'  testator  owned  on  the  29th  day  of  January,  1892, 
and  on  that  day  conveyed  to  one  Knabe  by  deed  with  full  covenants. 
At  the  time  of  this  conveyance  the  lands  were  incumbered  by  a  local 
assessment  amounting  to  $224.41,  with  interest.  On  the  12tli  day 
of  March,  1892,  Knabe  conveyed  the  lands  to  one  Breirly,  expressly 
subject  to  the  assessment,  and  on  the  2d  day  of  October,  1893,  the 
latter  conveyed  to  the  plaintiff  with  a  covenant  against  incumbrances. 
On  the  23d  day  of  October,  1896,  the  plaintiff  was  obliged  to  and  did 
pay  the  assessment,  amounting  at  that  date  to  $341.31,  in  order  to 
discharge  the  lien  upon  the  land,  and  he  now  seeks  to  recover  that 
sum  with  interest  from  the  personal  representatives  of  the  original 
grantor  from  whom  the  title  was  derived. 

The  plaintiff  cannot  recover  without  establishing  two  propositions 
of  law:  (1)  That  the  benefit  of  the  covenant  against  incumbrances 
contained  in  the  deed  of  the  defendants'  intestate  to  Knabe  passed 
to  the  plaintiff  through  the  intermediate  conveyances.  In  other 
words,  that  it  ran  with  the  land.  (2)  That  the  continuity  of  the 
covenant  was  not  interrupted  or  its  benefits  extinguished  as  to  the 
plaintiff  by  the  fact  that  his  immediate  grantor  took  the  title  ex- 
pressly subject  to  the  assessment  or  incumbrance  which  is  the  basis 
of  the  action. 

The  right  of  a  remote  grantee  of  real  estate  to  recover  damages 
for  breach  of  the  covenants  in  the  deed  has  been  exhaustively  dis- 
cussed in  a  recent  case  in  this  court,  and  the  point  in  that  case  was 
settled  only  after  four  appeals  and  then  by  a  bare  majority  of  this 

*  See  Simons  v.  Diamond  Match  Co.,  159  Mich.  241. 


GEISZLER    V.   DE   GRAAF  583 

court.  But  in  tliat  case  the  question  that  we  are  now  concerned 
with  was  not  involved,  since  the  action  was  upon  the  covenant 
for  quiet  enjoyment  and  warranty  made  by  a  stranger  to  the  title, 
and  it  was  held  that  under  the  circumstances  of  the  case  the  covenant 
of  the  stranger  was  personal  and  did  not  run  with  the  land.  The 
case  turned  upon  the  point  that  there  Avas  no  such  privity  of  estate 
or  contract  between  the  husband  who  had  joined  with  the  wife  in 
the  covenant  and  the  plaintiff  as  would  attach  the  covenant  to  the 
land  and  carry  liability  through  the  chain  of  title  to  a  remote  grantee. 
(Mygatt  v.  Coe,  152  N.  Y.  457;  147  K  Y.  456;  142  X.  Y.  78; 
124  N.  Y.  212.)  That  was  a  very  different  question  from  the  one 
now  before  us,  which  is  simply  whether  the  covenant  against  incum- 
brances runs  with  the  land  so  as  to  enable  a  remote  grantee  to 
recover  upon  it. 

We  can  decide  the  case  upon  another  question,  comi)aratively 
insignificant,  and  leave  the  principal  controversy  open  for  litigants 
to  grope  their  way  through  conflicting  decisions  to  some  conclusion 
as  to  Avhat  the  law  is  on  the  subject.  But  the  right  of  a  remote 
grantee  to  recover  for  breach  of  the  covenant  against  incumbrances 
is  a  question  arising  almost  every  day,  and  a  court  of  last  resort 
should  meet  it  when  presented  and  settle  the  law  one  way  or  the  other. 

It  was  the  general  rule  of  the  common  law  that  all  covenants  for 
title  ran  with  the  land  until  breach.  In  this  state  it  has  been  held 
that  a  breach  of  the  covenants  of  seizin,  or  right  to  convey  and 
against  incumbrances  occurred,  if  at  all,  upon  delivery  of  the  deed; 
while  those  for  quiet  enjoyment,  warranty  and  for  further  assurance 
were  not  broken  until  an  eviction,  actual  or  constructive.  (Rawle 
on  Covenants,  [5th  ed.,]  §  202  and  note.)  And  it  has  been  generally 
held  that  those  of  the  former  class  do  not  run  with  the  land,  while 
the  latter  do.  The  foundation  of  this  distinction  is  not  clearly  trace- 
able among  the  early  English  decisions.  The  principal  reason  for 
it,  however,  seems  to  have  been  that  at  common  law  no  privity  of 
estate  or  tenure  existed  between  a  covenantor  and  a  remote  covenantee, 
and,  therefore,  when  a  breach  of  a  covenant  of  title  occurred,  if  it 
was  not  such  a  covenant  as  Avas  affixed  to  the  land  and  ran  Avith  it, 
it  could  not  be  taken  advantage  of  by  a  remote  covenantee  or  a 
stranger  to  the  original  covenant,  since  it  Avas,  as  to  him,  a  mere 
chose  in  action,  and  at  common  laAV  choses  in  action  Avere  not  assign- 
able. But  noAV  choses  in  action  are  assignable,  and  the  question  is 
whether  the  ancient  law  concerning  the  covenant  against  incum- 
brances has  survived  the  reasons  upon  which  it  was  founded.  The 
operation  of  the  common-laAv  rule  upon  the  grantee  seeking  to  enforce 
the  covenant  against  incumbrances  Avas  ahvays  inconvenient,  and  the 
rule  itself  exceedingly  illogical.  While  it  Avas  held  that  the  breach 
occurred  upon  delivery  of  the  deed,  it  was  also  held  that  the  cove- 
nantee could  not  recover  more  than  nominal  damages  until  he  had 
paid   off  the  incumbrance,   or   had   been   actually   or   constructively 


584  GEISZLER   V.   DE   GRAAF  [CHAP.   IX 

evicted.  (Delavergne  v.  N orris,  7  Johns.  358;  Hall  v.  Dean,  13 
Johns.  105;  Stanard  v.  Eldridge,  16  Johns.  254;  Grant  v.  Tallman, 
20  N.  Y.  191;  McGuckin  v.  Milbank,  152  N.  Y.  297.)  It  was  vir- 
tually held  that  when  the  incumbrance  was  a  money  charge  which 
the  grantee  could  remove  there  were  two  breaches  of  the  covenant, 
one  nominal,  entitling  the  party  to  but  nominal  damages,  and  the 
other  substantial,  to  be  made  good  by  the  actual  damages  sustained 
and  an  action  and  recovery  f-or  the  first  breach  was  no  har  to  an 
action  and  recovery  for  the  second.  (Eaton  v,  Lyman,  30  Wis.  41 ; 
s.  c.  33  Wis.  34.) 

This  rule  did  not  apj)ly  to  permanent  incumhrances  which  the 
covenantee  could  not  remove,  such  as  easements  and  the  like,  since 
he  had  the  right  in  those  cases  to  bring  his  action  immediately  on  the 
breach  and  recover  just  compensation  for  the  real  injury.  A  learned 
writer  commenting  on  the  condition  of  the  law  of  covenants  as  it 
formerly  existed  stated  the  situation  quite  accurately  in  the  following 
language :  "  It  is  evident  from  these  cases  that  the  current  of  Ameri- 
can authority  tends,  with  but  little  exception,  towards  the  position 
that  on  total  breach  a  covenant,  though  annexed  to  the  realty,  he- 
comes  a  merely  personal  right,  which  remains  with  the  covenantee 
or  his  executors,  and  does  not  descend  with  the  land  to  heirs,  nor  run 
with  it  on  any  future  assignment  to  third  parties.  The  result  of  this 
doctrine,  as  generally  applied  in  this  country,  is  to  deprive  cove- 
nants which,  like  those  for  seizin  or  against  incumbrances,  if  not 
good,  are  broken  instantaneously,  of  all  efficacy  for  the  protection  of 
the  title,  in  the  hands  of  an  assignee,  even  when  the  loss  resulting 
from  the  breach  has  fallen  solely  upon  him.  Thus  the  right  of 
action  on  covenants,  originally  intended  for  the  benefit  of  the  inheri- 
tance in  all  subsequent  hands,  is  denied  under  this  course  of  decision, 
to  the  purchaser  of  the  land,  although  the  party  really  injured." 
(Smith's  Leading  Cases,  vol.  1,  p.  192,  note  by  Hare  &  Wallace.) 
In  England  the  law  became  so  uncertain  in  this  respect,  as  the  re- 
sult of  conflicting  decisons  (Kingdon  v.  Nottle,  1  M.  &  S.  355 ;  s.  c. 
4  M.  &  S.  53;  Spoor  v.  Green,  L.  R.  [9  Ex.]  99),  that  the  contro- 
versy was  set  at  rest  by  the  enactment  of  a  statute  which  provided 
that  the  covenants  should  run  with  the  land  unless  otherwise  re- 
stricted in  the  conveyance.  (44  &  45  Vict.  Ch.  41,  §  7.)  The  same 
result  has  been  accomplished  in  most  of  our  sister  states,  either  by 
judicial  decision  or  by  statute,  where  the  covenant  against  incum- 
brances runs  with  the  land. 

In  this  state,  since  the  enactment  of  the  Code  making  choses  in 
action  assignable,  it  has  been  held  that  the  covenant  against  incum- 
brances passes  with  the  land  through  conveyances  to  a  remote 
grantee.  (Coleman  v.  Bresnaham,  54  Hun.  619;  Clarke  v.  Priest,  21 
App.  Div.  174.)  But  it  has  been  held  in  the  case  at  bar  that  it  does 
not,  and  that  proposition  is  based  upon  the  common-law  rule  and 
upon  a  former  decision  of  the  same  court.     (S.  T.  S.  Building  Com- 


GEISZLER    V.   DE   GRAAF  585 

pany  v.  Jencks,  19  App.  Div.  314.)  With  this  conflict  of  views 
concerning  the  nature  and  effect  of  the  covenant  against  incum- 
brances, and  the  remedy  for  a  breach  of  it,  this  court  should  adopt 
the  rule  best  adapted  to  present  conditions  and  which  seems  most 
likely  to  conform  to  the  intention  of  the  parties  and  to  accomplish 
the  purpose  for  which  the  covenant  itself  is  made.  The  covenant 
is  for  the  protection  of  the  title,  and  there  is  no  good  reason  why  it 
should  not  be  held  to  run  with  the  land,  like  the  covenant  of  war- 
ranty or  quiet  enjoyment.  The  principle  which  was  at  the  founda- 
tion of  the  common-law  rule,  that  choses  in  action  were  not  assign- 
able, having  become  obsolete,  there  is  no  reason  that  I  can  perceive 
why  the  rule  should  survive  the  reason  upon  which  it  was  founded. 

"We  hold,  therefore,  that  the  covenant  against  incumbrances 
attaches  to  and  runs  with  the  land  and  passes  to  a  remote  grantee 
through  the  line  of  conveyances,  whether  there  is  a  nominal  breach 
or  not  when  the  deed  is  delivered. 

But  in  this  particular  case,  there  is  a  fatal  obstacle  to  the  plain- 
tiff's right  to  recover  upon  the  covenant.  The  plaintiff's  immediate 
grantor,  as  we  have  seen,  purchased  expressly  subject  to  the  incum- 
brance, and  while  he  owned  the  land  he  could  not  take  advantage  of 
the  original  covenant  made  by  the  defendants'  testator.  The  effect 
of  his  purchase,  subject  to  the  assessment,  was  to  relieve  the  prior 
grantors  from  any  liability  to  him  on  the  covenant.  Presumptively 
he  was  allowed  in  the  purchase  to  deduct  the  amount  of  the  assess- 
ment from  the  purchase  price  and  he  was,  therefore,  furnished  by 
his  grantor  with  the  money  to  pay  the  assessment,  aod  when  he  took 
the  land  and  was  furnished  with  the  money  to  pay  the  incumbrance 
the  obligation  of  the  covenant  was  discharged  and  extinguished.  He 
could  not  call  upon  any  prior  covenantor  to  pay  the  assessment, 
when  they  had  furnished  him  with  the  funds  to  pay  it  himself. 
{Vrooman  v.  Turner,  69  N.  Y.  280.) 

It  is  true  that  he  did  not  pay,  but  conveyed  to  the  plaintiff  with  a 
covenant  against  incumbrances.  But  the  plaintiff  acquired  only 
such  rights  as  his  immediate  grantor  could  assert  against  prioV 
grantors.  The  plaintiff's  grantor  did  not  transmit  to  him  any  cause 
of  action  against  the  defendants.  The  covenant  in  the  plaintiff's 
deed  is  a  new  covenant,  and  not  the  assignment  of  an  old  one.  On 
the  new  covenant  the  plaintiff's  grantor  is  liabl(>,  but  the  liability 
extends  only  to  him  and  cannot,  through  him,  extend  to  prior  parties. 
The  plaintiff  is  under  the  same  disability  as  his  grantor,  since  he 
is  in  privity  with  him. 

For  these  reasons  the  order  should  be  affirmed  and  judgment  abso- 
lute ordered  for  defendants  on  the  stipulation,  with  costs. 

Parker,  Ch.  J.,  ITaioht,  Landon,  Cullen  and  Werxer,  JJ., 
concur;  Gray,  J.,  concurs  in  result.  Ordered  accordingly. 


586  NOKE    V.   AWDER  [CHAP.    IX 

C.     Covenants  hy  Strangers  to  the  Title. 

I^OKE  V.  AWDEE 
Cro.  El.  373,  436.     1595. 

Covenant.  "Wherein  he  shows  that  one  John  King  made  a  lease  for 
years  to  A.  the  defendant,  who  by  deed  granted  it  to  Abel,  and  cove- 
nanted with  him,  that  he  and  his  assignees  should  peaceably  enjoy  it 
without  interruption.  Abel  grants  it  to  J.  S.,  who  grants  the  term  to 
the  plaintiff,  who  being  ousted  by  a  stranger,  brings  this  action ;  and 
after  issue  joined  upon  a  collateral  matter,  and  after  verdict  for  the 
plaintiff,  it  was  alleged  in  arrest  of  judgment,  that  this  action  lay  not 
for  the  second  assignee,  unless  he  could  show  the  deed  of  the  first 
covenant,  and  of  the  assignment,  and  of  every  mean  assignment ;  for 
without  deed  none  can  be  assignee  to  take  advantage  of  any  covenant, 
which  cannot  commence  without  deed ;  and  to  that  purj)Ose  cited  Old 
Act,  102;  and  19  Edw.  2;  Covenant,  25.  And  if  one  be  enfeoffed 
with  warranty  to  him  his  heirs  and  assignees,  and  the  feoffee  makes  a 
feoffment  over  without  deed,  the  assignee  shall  not  take  advantage  of 
this  warranty,  because  he  hath  not  any  deed  of  assignment.  But  if 
he  had  the  deed,  it  should  be  otherwise;  and  to  that  purpose  vide  13 
Edw.  3,  Vouch.  17;  3  Edw.  3,  Monstrans  de  Fayts,  37;  11  Edw.  4, 
Ibid.  164;  15  Edw.  2,  Ibid.  44;  13  Hen.  7,  13  and  14,  22  Ass.  plea, 
88.  But  PoPHAM  held,  that  he  shall  have  advantage  without  the 
deed  of  assignment;  for  there  is  a  difference  where  a  covenant  is 
annexed  to  a  thing,  which  of  its  nature  cannot  pass  at  the  first  with- 
out deed,  and  where  not.  For  in  the  first  case,  the  assignee  ought  to 
be  in  by  deed,  otherwise  he  shall  not  have  advantage  of  the  covenant ; 
and  therefore  he  denied  the  case  of  the  feoffee  with  warranty;  for 
the  second  feoffee  shall  have  benefit  of  the  warranty,  although  he 
doth  not  show  the  deed  of  assignment,  but  shows  the  deed  of  the  war- 
ranty ;  and  so  is  the  better  opinion  of  the  books.  And  to  that  opinion 
the  other  Justices  inclined.     Sed  adjournatur.     Vide  3  Co.  63. 

It  was  now  moved  again.  And  all  the  Justices  agreed,  that  the 
assignee  shall  have  an  action  of  covenant  without  showing  any  deed  of 
the  assignment ;  for  it  is  a  covenant  which  runs  with  the  estate ;  and 
the  estate  being  passed  without  deed,  the  assignee  shall  have  the 
benefit  of  the  covenant  also:  and  the  executor  of  the  baron,  who  is 
assignee  in  law,  who  comes  in  without  deed,  shall  have  the  benefit  of 
such  a  covenant,  as  appears  30  Edw.  3,  in  SymTcins  Simonds'  Case. 
And  PoPHAM  and  Fenner  held,  that  a  feoffee  shall  vouch  by  a  war- 
ranty made  to  his  feoffor,  without  showing  any  deed  of  assignment : 
for  the  deed  of  assignment  is  not  requisite,  nor  it  is  to  any  purpose 
to  show  it;  for  it  appears  by  the  books,  that  being  shown,  it  is  not 
traversable  by  the  vouchee.  And  as  a  warranty  or  covenant  is  not 
grantable,  nor  to  be  assigned  over  without  the  estate;  so  when  the 


NOKE    V.    AWDER  587 

estate  passeth,  althougli  it  be  by  parol,  the  warranty  and  covenant 
ensue  it ;  and  the  assignee  of  the  estate  shall  have  the  benefit  thereof. 
Coke,  Attorney-General  (who  was  of  counsel  with  the  defendant), 
said,  that  the  law  was  clear  as  you  have  taken  it,  yet  the  declaration 
is  ill;  for  he  declares,  quod  cum  Johannes  King,  10  Eliz.,  let  that 
to  the  defendant  for  years,  virtute  cujus  he  was  possessed,  and  granted 
it  to  Abel  by  indenture  with  the  covenant,  who  in  15  Eliz.  assigned 
it  to  the  plaintiff:  and  further  allegeth,  that  long  time  before  that 
the  said  J.  K.  had  anything,  one  Robert  King  was  seised  in  fee, 
viz.,  7  Eliz.,  and  so  seised,  died  seised  in  15  Eliz.  and  it  descended  to 
Thomas  King,  who  entered  upon  the  plaintiff  and  ousted  him :  so  he 
doth  not  show  that  John  King  who  made  the  lease  had  anything;  for 
Kobert  King  was  thereof  then  seised.  And  then  when  John  King  let 
to  the  defendant,  and  he  granted  his  term  by  indenture,  nothing 
passed  but  by  estoppel;  then  the  lessee  by  estoppel  cannot  assign 
anything  over,  and  then  the  plaintiff  is  not  an  assignee  to  maintain 
this  action.  But  admitting  that  J.  K.  had  at  the  time  of  the  lease 
made  by  him,  a  lease  for  a  greater  number  of  years,  and  that  Robert 
King  had  the  freehold,  and  thereof  died  seised,  and  so  all  might  be 
true  which  is  pleaded ;  then  the  entry  of  Thomas  King  upon  the 
defendant  is  not  lawful.  So  quacunque  via  daia,  this  action  cannot 
be  maintained.  And  this  point  for  the  case  of  estoppel  was  adjudged 
in  this  court,  in  the  case  of  Armiger  v.  Purcas,  in  a  writ  of  error. 
And  all  the  Cot^rt  held  here,  that  it  was  clear  upon  the  matter 
shown,  that  the  action  lay  not ;  for  the  plaintiff  ought  to  have  shown 
an  estate  by  descent  in  J.  King,  at  the  time  of  the  lease  and  assign- 
ment made,  or  an  estate  whereby  he  might  make  a  lease,  and  that  this 
was  afterwards  determined ;  and  so  confess  and  avoid  the  estate  in  the 
lessor,  otherwise  this  action  of  covenant  lieth  not ;  and  it  never  lies 
upon  the  assignment  of  an  estate  by  estoppel.  Wherefore  they  were 
of  opinion  to  have  then  given  judgment  against  the  plaintiff;  but 
afterward  they  would  advise  until  the  next  Term.  —  Note.  This  was 
continued  until  Trin.  41  Eliz.,  and  then  being  moved  again,  all  the 
Justices  resolved,  that  the  assignee  of  a  lease  by  estoppel,  shall  not 
take  advantage  of  any  covenant;  but  that  it  shall  not  be  intended 
a  lease  by  estoppel,  but  a  lawful  lease.  But  no  sufficient  title  being 
shown  to  avoid  it,  it  is  then  as  an  entry  by  a  stranger  Avithout  title, 
which  is  not  any  breach.  Wherefore  it  was  adjudged  for  the 
defendant.^ 

1  See  Rawle,  Covenants  for  Title,  5th  cd.,  §§  232-236;   1  Smith,  L.  C, 
11th  ed.,  95  et  seq. 


588  beddoe's  executor  v.  wads  worth       [chap,  ix 

ANDREW  V.  PEARCE,  Executor  of  BEST 
1  B.  &  P.  N.  R.  158.     1805. 

Sir  James  Mansfield,  C.  J.^  This  is  an  action  of  covenant,  and 
the  declaration  states  that  Peter  Best  in  1764  demised  the  premises 
in  question  for  99  years  to  John  Garland,  and  covenanted  that  he 
had  good  right  to  make  such  demise,  and  that  Garland  should  quietly 
enjoy  the  premises  during  the  said  term;  that  Garland  in  1791 
assigned  to  Bennett,  and  Bennett  in  1801  assigned  to  the  plaintiff, 
who  was  ejected  by  Thomas  Pearce  under  a  title  superior  to  that  of 
Peter  Best.  The  plea  states  that  Peter  Best,  at  the  time  of  the  de- 
mise, was  seised  of  the  premises  in  tail  male,  and,  before  the  assign- 
ment by  Bennett  to  the  plaintiff,  died  so  seised  without  heirs  male  of 
his  body,  whereupon  the  term  of  years  ceased  and  determined.  Upon 
these  pleadings,  it  is  clear  that  Peter  Best  had  no  power  to  make  a 
demise  of  these  premises  to  continue  for  99  years  if  he  should  die 
without  issue  male ;  but  that  it  was  a  good  lease  so  long  as  he  should 
live,  and  he  might  have  lived  till  the  end  of  99  years.  On  this  de- 
murrer every  fact  is  admitted.  It  is  clear,  therefore,  that  at  the  time 
when  Bennett  assigned  to  Andrew,  Bennett  had  no  interest  in  the 
premises;  the  lease  is  stated  to  have  become  absolutely  void  by  the 
death  of  Peter  Best  without  heir  male.  The  lease  then  having  be- 
come absolutely  void,  what  could  be  the  operation  of  the  assignment 
by  Bennett  to  Andrew?  He  could  neither  assign  the  lease  nor  any 
interest  under  it,  because  the  lease  was  gone.  "What  right  of  any 
sort  had  Bennett?  If  anything,  it  could  only  be  a  right  of  action 
on  the  covenant,  and  that  could  not  be  assigned  by  law.  As  the 
person  who  made  the  assignment  had  no  interest  in  the  premises, 
the  assignment  itself  could  have  no  operation.  Consequently  there 
IS  no  ground  upon  which  the  present  action  can  be  maintained,  and 
therefore  judgment  must  be  given  for  the  defendant. 

Judgment  for  the  defendant.^ 


BEDDOE'S  Executor  v.  WADSWORTH 
21  Wend.  (N.  Y.)   120.     1839. 

Demurrer  to  declaration.  This  was  an  action  on  covenants  of 
warranty  and  for  quiet  enjoyment,  contained  in  a  deed  of  land,  dated 
July  7th,  1797,  executed  by  the  defendant  to  John  Johnston.  Each 
count  (there  being  six  in  all)  averred  that  afterwards,  viz.,  on  the 
same  day,  the  defendant  by  Johnston's  direction,  and  with  his  con- 

1  Only  the  opinion  is  given. 

•^  Compare  Cuthbertson  v.  Irving,  4  H.  &  N.  742. 


beddoe's  executor  v.  wadsworth  589 

sent,  surrendered  ^possession  of  the  land  to  the  testator,  John  Beddoe, 
who  continued  in  possession  until  Johnston,  on  the  16th  August, 
1802,  by  indenture,  in  consideration  of  one  dollar,  therein  expressed 
as  in  hand  paid  by  Beddoe,  did  "  reraise,  release,  and  forever  quit- 
claim unto  the  said  John  Beddoe,  his  heirs  and  assigns  forever,  all 
the  right,  title,  interest,  claim  or  demand,  which  the  said  John  John- 
ston, &c.,  had  in  or  to  the  said  tract,  &c.,  to  have  and  to  hold  the  said 
tract,  &c.,  unto  the  said  John  Beddoe,  his  heirs  and  assigns  forever, 
to  his  and  their  own  proper  use,  benefit  and  behoof,  &c."  Each  count 
stated  an  eviction  from  part  of  the  premises,  while  in  possession  of 
persons  claiming  under  John  Beddoe,  the  plaintiff's  testator,  and 
during  the  lifetime  of  the  testator.  The  eviction  was  alleged  to  have 
been  in  virtue  of  a  title  in  one  Rachel  Malin.  All  the  counts  except 
the  sixth  stated  this  title  to  be  paramount  to  the  defendant's;  and 
all  except  the  fifth  averred  that  the  plaintiff,  as  executor,  had  thereby 
incurred  damages  and  costs.  The  fifth  count  averred  that  the  testa- 
tor in  his  lifetime,  and  the  plaintiff  since  his  death,  had  been  obliged 
to  pay  them. 

The  first  and  second  counts  averred  that  the  defendant's  deed  to 
Johnston  was  given  to  and  received  by  Johnston  for  and  in  behalf 
of  Beddoe,  the  testator,  and  for  his  benefit. 

All  the  counts  except  the  third,  concluded  as  for  a  breach  of  the 
covenant  for  quiet  enjoyment  only;  the  third  was  for  a  breach  of  the 
covenant  of  warranty  only.  But  the  deed  as  set  forth  in  each  count 
in  fact  contained  covenants  of  seisin,  of  warranty,  for  quiet  enjoy- 
ment, and  further  assurance.    The  defendant  demurred  to  each  count. 

By  the  Court.  (Cowen,  J.)  If  the  covenants  of  w^arranty  and 
for  quiet  enjoyment  passed  by  the  quitclaim  deed  from  Johnston  to 
the  plaintiff's  testator,  the  right  of  action  sought  to  be  shown  by  the 
declaration  seems  to  be  clear  in  all  the  counts  except  the  sixth.  This 
count  is  defective  in  not  averring  that  the  eviction  was  by  a  title 
paramount  to  that  of  the  defendant.  Wehh  v.  Alexander,  7  Wendell, 
281;  Luddington  v.  Pulver,  6  Id.  404  to  406;  Greenhy  v.  Wilcocks,  2 
Johns.  R.  395;  Ellis  v.  Welch,  6  Mass.  Rep.  246;  per  Savage,  C.  J., 
in  Richert  v.  Snyder,  0  WcmhU'II,  421,  422;  4  Kent's  Com.  479,  3d  ed. 
Non  constat  but  Rachel  Malin  may  have  proceeded  to  eviction  upon 
a  right  derived  from  Johnston  or  the  testator  himself.  In  the  other 
five  counts,  however,  there  is  enough  to  show  that  during  the  lifetime 
of  Beddoe  the  testator,  he  either  became  personally  liable  on  cove- 
nants to  his  grantees  as  to  a  part  of  the  premises  from  which  they 
were  evicted  by  a  title  superior  to  the  defendant's,  or  suffered  an 
injury  in  an  eviction  of  his  tenant  by  a  like  superior  title.  Then  it 
is  averred  either  that  the  plaintiff  was  compelled  to  pay  damages  and 
costs  as  executor,  or,  according  to  the  fifth  count,  the  testator  in  his 
lifetime  was  obliged  to  pay  a  part,  and  the  plaintiff  another  part 
after  his  death.  In  either  case,  the  right  of  action  pertained  to  the 
testator  personally.     The  covenant  was  broken  by  the  eviction,  and 


590  beddoe's  executor  v.  wadsworth       [chap.  IX 

the  whole  damnges  were  due  (Ilosmer,  C.  J.,  in  Mitchell  v.  Warner, 
5  Conn.  R.  ,504  to  506),  the  right  to  which  passed  on  his  death,  not 
to  his  heir,  but  to  his  personal  representative.     Hamilton  v.  Wilson, 

4  Johns.  R.  72.  A  covenant  real  ceases  to  be  such  when  broken,  and 
no  longer  runs  with  the  land.  It  would  not  go  to  the  heir  by  death, 
for  the  same  reason  that  it  could  no  longer  follow  the  land  into  the 
hands  of  a  devisee  or  grantee.  See  Marhland  v.  Crump,  1  Dev.  & 
Bat.  94,  101 ;  Kingdon  v.  Nottle,  1  Maule  &  SeL  355 ;  s.  c.  4  Id.  53. 

This  view  of  the  case  disposes  of  all  the  minor  objections  raised  by 
the  demurrers.  There  must  be  judgment  for  the  defendant  on  the 
sixth  count,  and  for  the  plaintiff  on  all  the  others,  unless  either  the 
first  or  second  point  taken  by  the  defendant's  counsel  is  sustainable. 
These  are  each  applicable  to  the  remaining  five  counts. 

The  first  point  is,  that  it  appears  from  five  of  the  counts,  that  when 
the  defendant  conveyed  to  Johnston,  he,  the  defendant,  had  no  title; 
and  as  no  estate  therefore  passed  to  the  plaintiff's  testator,  the  cove- 
nants were  not  assigned;  that  covenants  pass  only  as  incidents  to  an 
estate;  and  if  there  be  none,  the  covenants  cannot  be  said  to  be 
annexed  to  an  estate,  much  less  to  pass  with  it.  The  point  seems  to 
suppose  that  these  covenants  can  never  be  transferred  where  there  is 
a  total  want  of  right  in  the  original  covenantor,  though  his  deed 
transfer  the  actual  possession.  It  seizes  on  the  phrase  in  4  Kent's 
Com.  471,  note  b,  3d  ed.,  and  other  books,  "  that  they  cannot  be  sepa- 
rated from  the  land  and  transferred  without,  but  they  go  with  the 
land  as  being  annexed  to  the  estate,  and  bind  the  parties  in  respect  to 
privity  of  estate."  N"o  ISTew  York  case  was  produced  which  denies 
that  they  pass  where  the  possession  merely  goes  from  one  to  another 
by  deed,  and  there  is  afterwards  a  total  failure  of  title ;  but  there  are 
several  to  the  contrary.  Withy  v.  Mumford,  5  Cowen,  137 ;  Garloch 
V.  Closs,  5  Id.  143,  n.  And  see  Marhland  v.  Crump,  1  Dev.  &  Bat. 
94;  Booth  v.  Starr,  1  Conn.  R.  244,  248.  Nor,  when  we  take  the 
word  estate  in  its  most  comprehensive  meaning,  can  it  be  said  there 
IS  none  in  such  a  case  to  which  the  covenant  may  attach.  It  is  said 
by  Blackstone  to  signify  the  condition  or  circumstance  in  which  the 
owner  stands  with  respect  to  his  property  (2  Black.  Com.  103), 
and  a  mere  naked  possession  is  an  imperfect  degree  of  title,  which 
may  ripen  into  a  fee  by  neglect  of  the  real  owner  Id.  195,  6.  It 
is,  in  short,  an  inchoate  ownership  or  estate  with  which  the  cove- 
nants run  to  secure  it  against  a  title  paramount;  and  in  that  sense 
IS  assignable  within  the  restriction  insisted  upon.  It  is  said  in  sev- 
eral cases  that  the  covenants  of  warranty  and  quiet  enjoyment  refer 
emphatically  to  the  possession  and  not  to  the  title.  Waldron  v. 
M'Carthy,  3  Johns.  R.  471,  3,  per  Spencer,  J.;  Kortz  v.  Carpenter, 

5  Id.  120.  The  meaning  is,  that  however  defective  the  title  may  be, 
these  covenants  are  not  broken  till  the  possession  is  disturbed.  When 
the  latter  event  transpires,  an  action  lies  to  recover  damages  for  the 
failure  both  of  possession  and  title  according  to  the  extent  of  such 
failure. 


beddoe's  executor  v.  wadsworth  591 

The  case  of  Bartholometv  v.  Candec,  4  Pick.  167,  was  mainly  re- 
lied upon  in  support  of  the  ground  taken  by  the  first  point.     All  that 
ease  decides  is,  that  a  covenant  no  longer  runs  with  the  land  after  it 
is  broken.    The  declaration  was  by  the  grantee  of  one  Thorp,  to  whom 
the  defendant  had   conveyed   in   fee  with   covenants   of   seisin  and 
warranty,  and  breaches  were  assigned  upon  both.     The  defendant 
pleaded  and  the  jury  found,  that  before  the  defendant  conveyed  to 
Thorp,  he  had  conveyed  to  one  Sparks,  who  entered  and  died  actually 
seised,  leaving  the  land  to  his  children,  who  were  still  actually  seised 
when  the  defendant  conveyed  to  Thorp.     Mr.  Justice  Wilde  arrives 
at  the  conclusion  that  the  covenant  of  seisin  was  broken  before  the 
deed  from  Thorp  to  the  plaintiff;  and  adds:  "  This  point  being  estab- 
lished, it  is  perfectly  well  settled  that  no  action  will  lie  on  this  con- 
tract in  the  name  of  the  assignee.     By  the  breach  of  the  covenant  of 
seisin,  an  action  accrued  to  the  grantee,  Avhich,  being  a  mere  chose 
in  action,  was  not  assignable."     lie  does  not  notice  the  covenant  of 
warranty,  but  seems  to  consider  the  claim  under  that  as  standing  on 
the  same  ground;  which  I  think  might  well  lie  under  the  pleas  as 
found  by  the  jury.    The  fair  import  of  these  was,  that  neither  Thorp 
nor   the  plaintiff  ever  had   possession;   so  that,   according   to   some 
cases,  the  covenant  of  warranty  was  also  immediately  broken ;  Duvall 
V.  Craig,  2  Wheat  45,  61,  62;  Randolph  v.  Meal,  Mart.  &  Yerg.  58; 
and  according  to  our  own  it  never  could  have  any  effect.     Xo  posses- 
sion ever  having  been  taken  under  the  deed,  there  could  be  no  actual 
eviction,  which  is  said  to  be  essential  to  a  recovery  upon  a  covenant  of 
warranty.     We])h  v.  Alexander,  7  Wendell,  281  to  284,  and  the  cases 
there  cited;  Jacl'son  ex  dem.  Montressor  v.  Rice,  3  Wendell,  180,  182, 
per  Savage,  C.  J.;    Vanderl-arr  v.   Vanderl-arr,   11   Johns.  R.   122. 
See  a  very  full  collection  and  consideration  of  the  cases  to  this  point, 
both  as  it  respects  the  covenant  of  warranty  and  for  quiet  enjoy- 
ment, by  Hosmer,  C.  J.,  in  Mitchell  v.  ]Varner,  5  Conn.  R.  521  to  527. 
That  an  unbroken  covenant  of  warranty  shall  run  with  the  posses- 
sion of  the  land,  was  not  questioned  by  counsel  or  court  in  Bartholo- 
mew V.  Candee,  nor  was  it  in  a  subsequent  and  similar  case,  Wheeloch 
V.  Thayer,  16  Pick.  68,  also  relied  upon.     T  have  looked  through  the 
other  cases  cited  by  the  counsel  for  the  defendant,  and  they  all  go  to 
tlie  i)oiiit,  either  that  a  covenant  broken  ceases  to  be  assignable,  or 
that  covenants  in  gross  are  not  so.     These  positions  are  indisputably 
settled;  and  we  have  adopted  the  first,  in  order  to  show  that  this 
action  was  properly  brouglit  by  Jolm  Beddoe's  executor  instead  of 
his  heir.     I  do  not  except  from  this  remark  the  case  of  Andrew  v. 
Pearce,  4  Bos.  &  Pull.  158.     It  is  true  that  was  an  action  on  cove- 
nants  both   that    the   defendant   had    authority    to   demise   and   for 
quiet  enjoyment.     The  title  failed  before  the  plaintiff  took  an  assign- 
ment; he  entered  and  was  ousted;  and  it  was  held  that  he  could  not 
recover,  because  the  mere  failure  of  the  title  broke  the  covenants. 
Mansfield,  C.  J.,  said  expressly,  the  assignor  had  only  a  right  of 


592  beddoe's  executor  v.  wadsworth       [chap,  ix 

action  loft,  which  he  could  not  assign.  It  would  seem  by  this  case 
that  in  England  a  similar  failure  of  title,  without  eviction,  would  be 
a  breach  of  the  covenant  for  quiet  enjoyment.  "With  us  the  doctrine 
is  clearly  otherwise.  Kortz  v.  Carpenter,  5  Johns.  R.  120;  Norman 
V.  Wells,  17  Wendell,  160,  and  the  cases  there  cited;  and  see  Mitchell 
V.  Warner,  5  Conn.  R.  497,  522,  and  the  very  full  reference  there  to 
the  New  York  cases.  In  Andrew  v.  Pearce,  the  lease  was  treated 
as  totally  gone,  by  a  failure  of  the  title;  whereas  there  was  still  a 
continuing  possession,  till  the  plaintiff  was  ousted,  and  then  and  not 
till  then,  according  to  our  cases,  was  the  covenant  for  quiet  enjoy- 
ment broken.  There  is  a  difference  in  more  respects  than  one  between 
our  own  and  the  English  cases  as  to  what  shall  constitute  a  breach 
of  the  covenants  of  title,  so  as  to  take  away  their  assignable  quality. 
Even  a  covenant  of  seisin,  made  and  broken  in  the  same  breath,  is 
there  held  to  run  with  the  land,  till  actual  damages  are  sustained  by 
the  breach.  Kingdon  v.  Noftle,  1  Maule  &  Sel.  355;  4  Id.  53.  Kent's 
Com.  471,  2,  3d  ed.,  says  the  reason  assigned  for  the  decision  is  too 
refined  to  be  sound.  The  case  is  followed  by  Backus'  Admr.  v. 
McCoy,  3  Ham.  Ohio  K.  211;  but  severely  critised  in  Mitchell  v. 
Warner,  5  Conn.  R.  497  to  505.    Kent's  Com.  ut  supra,  note  a. 

But  secondly,  if  the  covenant  be  in  its  own  nature  available  to  the 
assignee  as  a  protection  against  the  total  failure  of  the  defendant's 
title,  and  if  it  be  assignable  by  a  grant  of  the  land,  it  is  insisted  that 
none  of  the  counts  in  the  declaration  show  that  such  a  grant  was 
made  from  Johnston  to  the  plaintiff's  testator.  All  the  counts  stop 
with  averring  that  Johnston,  for  the  consideration  of  one  dollar, 
remised,  released  and  forever  quitclaimed  to  the  testator  in  fee. 
Technically,  these  are  but  words  of  release ;  and  as  no  previous  lease 
from  Johnston  to  the  testator  is  shown,  it  is  supposed  that  the  grant- 
ing words  are  inoperative.  This  objection  supposes  that  the  words 
used  cannot  carry  the  estate  except  as  part  of  a  conveyance  by  lease 
and  release;  and  that,  in  order  to  give  them  effect,  a  lease  should  be 
shown,  either  by  its  production  and  proof,  in  the  usual  way,  or  its 
recital  in  the  release;  and  this  formal  strictness  would  seem  still  to 
prevail  in  Engknd.  Doe  ex  dem.  Pemher  v.  Wagstaff,  1  Carr.  & 
Payne,  477.  In  Bennett  v.  Irwin,  3  Johns.  R.  365,  366,  Van  Ness, 
J.,  said,  a  mere  release  or  quitclaim,  unless  the  releasee  is  in  posses- 
sion, is  void.  But  the  declaration,  in  the  case  at  bar,  shows  that  the 
grantee  was  in  possession.  Even  this  strictness  was,  however,  totally 
exploded,  by  the  case  of  Jackson  ex  dem.  Salishury  v.  Fish,  10  Johns. 
R.  456,  the  operative  words  as  set  forth  in  the  declaration  being  held 
of  themselves  sufficient  to  raise  and  execute  a  use  under  the  Statute. 
The  conveyance  was  there  held  good  as  a  bargain  and  sale.  Had  that 
case  occurred  to  counsel,  we  should  doubtless  have  been  saved  the 
examination  of  this  objection;  for  we  do  not  remember  its  being 
denied  on  the  argument  that  words  which  are  sufficient  to  pass  a  fee 
in  conveyancing  are  equally  sufficient  in  pleading  by  way  of  averment. 


SLATER    V.    RAWSON  593 

The  demurrers  are  overruled  as  to  all  the  counts  except  the  sixth, 
and  judgment  must  be  given  for  the  plaintiff. 

The  demurrer  to  the  sixth  count  is  well  taken,  and  judgment  must 
be  given  for  the  defendant  as  to  that  count,  with  leave  to  both 
parties  to  amend. 


SLATER  AND  Another  v.  EAWSON" 
1  Met.  (Mass.)  450.    1840. 

Dewey,  J.^  This  is  an  action  to  recover  damages  for  the  breach 
of  certain  covenants  in  a  conveyance  of  land  made  by  the  defendant 
to  Samuel  Slater  and  John  Tyson,  through  whom,  by  sundry  con- 
veyances, the  plaintiffs  derive  their  title  as  assignees  and  subsequent 
purchasers.  The  covenants  in  the  deed  of  the  defendant  are  in  the 
usual  form,  embracing  the  covenants  of  seisin  and  right  to  convey, 
a  covenant  against  encumbrances,  and  also  a  covenant  of  warranty. 
The  breach  alleged  in  the  declaration  is,  that  one  Elisha  Jacobs, 
having  an  elder  and  better  title  than  that  of  the  defendant,  entered 
upon  the  land,  claiming  title  thereto,  and  that  the  plaintiffs,  admit- 
ting his  superior  title,  voluntarily  surrendered  the  possession  to  him. 
To  establish  the  title  of  Jacobs,  the  plaintiffs  offered  in  evidence  a 
deed  from  one  John  Rawson  to  William  Sears,  dated  May  6th,  1782, 
and  sundry  other  deeds  conveying  this  title,  as  derived  from  Sears, 
and  vesting  it  in  Jacobs.  The  defendant  admitted  that  the  deed  from 
John  Rawson  was'  prior  in  time,  to  that  under  which  he  claimed 
to  have  acquired  title;  but  he  contended  that  the  deed  of  Rawson  to 
Sears  did  not  include  the  land  which  the  plaintiffs  had  thus  volun- 
tarily surrendered  to  Jacobs.  This  presented  a  question  of  boundary, 
and  much  evidence  thereon  was  submitted  to  the  jury.- 

The  only  other  question,  upon  which  any  opinion  in  matter  of  law 
was  given  at  the  trial  before  the  jury,  was  upon  the  subject  of 
damages.  The  jury  were  directed,  if  they  should  find  for  the  plain- 
tiffs, to  assess  the  damages  at  the  value  of  the  land  at  the  time  of 
the  voluntary  surrender  of  it  by  the  plaintiffs  upon  the  entry  by 
Jacobs,  with  interest  from  that  time;  and  this,  as  we  understand,  is 
not  dcMiied  by  the  defendant's  counsel  to  be  the  correct  rule  for  assess- 
ing the  damages,  if  tlie  plaintiffs  can  maintain  their  action.  But 
upon  the  argument  before  us,  upon  the  case  as  stated  by  the  ])artits, 
the  defendant  insists,  that  as  he  was  not  seised  of  the  land,  which  is 
now  the  subject  of  controversy,  at  the  time  he  executed  the  deed  to 
Slater  and  Tyson,  and  so  nothing  passed  by  his  deed  to  his  immedi- 
ate grantees,  and  they  therefore  could  pass  no  estate,  nor  any  cove- 
nants, to  an  assignee,  which  would  authorize  an  action  in  his  own 
name,  he  is  not  liable  to  the  plaintiffs,  to  any  extent,  on  his  covenants. 

1  The  opinion  only  is  given. 

2  The  part  of  the  opinion  relating  to  the  question  of  bovmciaiy  is  omitted. 


594  SLATER    ?;.    RAWSON  [CHAP.    IX 

Tlio  (listiiK'tion  as  to  tlie  legal  oiToct  of  the  different  covenants 
usually  introduced  into  our  conveyances,  however  little  it  may  have 
been  understood  or  regarded  prior  to  the  cases  of  Marston  v. 
Hobhs,  2  Mass.  433,  and  Bickfoi'd  v.  Page,  2  Mass.  455,  is  now  very 
well  settled.  The  covenants  of  seisin  and  right  to  convey  are  to  all 
practical  purposes  synonymous  covenants;  the  same  fact,  viz.  the 
seisin  in  fact  of  the  grantor,  claiming  the  right  to  the  premises,  will 
authorize  both  covenants,  and-  the  want  of  it  is  a  breach  of  both. 
But  upon  these  covenants  no  action  can  be  maintained  in  the  name 
of  an  assignee  or  subsequent  purchaser;  for  if  broken  at  all,  they 
are  necessarily  broken  at  the  moment  of  the  execution  of  the  deed; 
and  not  running  with  the  land,  they  do  not  pass  by  a  subsequent 
conveyance  of  the  land.  The  covenant  of  warranty,  on  the  other 
hand,  is  a  covenant  running  with  the  land,  and  may  be  made  avail- 
able to  a  subsequent  purchaser,  however  remote,  if  the  conveyances 
are  taken  with  proper  words  to  pass  the  covenant.  But  to  support 
an  action  by  an  assignee,  on  the  covenant  of  warranty,  it  is  neces- 
sary that  the  warrantor  should  have  been  seised  of  the  land ;  for,  by  a 
conveyance  without  such  seisin,  the  grantee  acquires  no  estate,  and  has 
no  power  to  transfer  to  a  subsequent  purchaser  the  covenants  in  his 
deed ;  because,  as  no  estate  passes,  there  is  no  land  to  which  the  cove- 
nants can  attach.  If  therefore  the  defendant,  at  the  time  of  the 
making  of  his  deed  to  Slater  and  Tyson,  was  not  seised,  then  the 
covenant  of  warranty  did  not  pass  to  the  plaintiffs  as  assignees,  and 
the  only  liability  of  the  defendant  is  upon  his  covenant  of  seisin, 
which  covenant,  for  the  reasons  already  stated,  is  wholly  unavailable 
to  the  plaintiffs. 

It  is  to  be  taken  as  established  by  the  finding  of  the  jury,  and  is 
also  in  accordance  with  the  pleadings  on  the  part  of  the  plaintiff, 
that  the  defendant,  at  the  time  of  making  his  conveyance,  had  no 
legal  title  to  the  twenty-two  acres  of  land,  which  the  plaintiff  has 
yielded  up  to  the  claim  of  Jacobs;  but  that  the  title  to  the  same 
was  then,  and  had  been  for  a  long  period  previously,  in  William  Sears 
and  those  claiming  under  him.  The  further  inquiry  then  is,  whether 
the  defendant  was  seised  in  fact  of  these  premises,  claiming  right 
thereto,  at  the  time  of  executing  his  deed  to  Slater  and  Tyson. 

The  case,  as  stated  by  the  parties,  in  the  report,  finds  that  the 
premises,  which  are  the  subject  of  this  controversy,  were  a  part  of  a 
large  tract  of  woodland  unenclosed  by  fences,  and  of  which  there 
had  been  no  actual  occupation  by  any  of  the  parties.  Taking  these 
facts  to  be  correctly  stated,  there  was  clearly  no  seisin  in  fact,  in  the 
defendant,  acquired  by  an  entry  and  adverse  possession.  The  rule, 
as  to  laiids  that  are  vacant  and  unoccupied,  that  the  legal  seisin  fol- 
lows the  title,  seems  to  be  applicable  here;  and  having  ascertained 
in  whom  is  the  legal  title,  that  also  determines  in  whom  the  seisin  is. 
But  the  plaintiffs  have  alleged  in  their  declaration,  and  established 
by  their  evidence,  the  fact  that  the  legal  title  to  the  land  surrendered 


SLATER    V.   RAWSON  595 

was  not  in  tlie  defendant  at  the  time  of  the  execution  of  the  deed  by 
him  but  was  in  those  who  cLaim  under  William  Sears.  It  being  thus 
shown  that  there  was  no  seisin  in  fact,  nor  any  legal  title  to  the  prem- 
ises in  the  defendant,  it  necessarily  follows  that  the  covenants  of 
seisin  and  right  to  convey  were  broken,  and  that  nothing  passed  to 
Slater  and  Tyson,  which  they  could  transfer  to  the  plaintiffs  as  the 
foundation  of  an  action  in  their  own  name.  The  covenant  of  seisin 
was  broken  at  the  moment  of  the  execution  of  the  deed,  and  became 
a  mere  chose  in  action  not  transferable;  and  the  covenant  of  war- 
ranty is  wholly  ineffectual,  as  no  land  passed  to  Avhich  it  could  be 
annexed;  and  the  result,  therefore,  from  this  view  of  the  case,  is  that 
the  plaintiff  cannot  maintain  his  action. 

It  was  said  in  the  argument,  that  the  defendant  should  be  estopped 
to  deny  his  seisin,  and  thus  avoid  the  covenant  of  warranty,  because 
by  his  own  deed  he  has  affirmed  it,  and  that  should  be  conclusive 
against  him.  Without  deciding  whether  such  estoppel  might  or 
might  not,  under  any  circumstances,  be  interposed  where  there  are 
various  covenants  in  a  deed,  and  the  party  be  thus  subjected,  at  the 
election  of  the  covenantee,  to  damages  different  from  those  which 
the  law  has  prescribed  for  the  covenant  which  is  actually  broken ;  or, 
in  the  case  of  an  assignee,  to  allow  him  to  recover  for  the  breach  of  a 
covenant  which  is  shown  in  fact  never  to  have  passed  to  him ;  it  seems 
to  us  clear,  that  in  the  present  case  no  such  objection  can  avail,  as 
the  plaintiff,  in  his  declaration,  and  by  his  own  showing,  has  estab- 
lished the  fact  that  the  defendant  had  neither  the  seisin  nor  the  legal 
title  to  the  land  conveyed. 

It  was  further  suggested,  upon  the  argument,  that  the  ground  of 
defence  now  principally  relied  on,  that  the  covenant  of  warranty  did 
not  pass  to  the  plaintiffs,  in  consequence  of  the  want  of  seisin  in  the 
defendant,  is  not  open  to  the  party;  not  having  been  presented  in  this 
form  at  the  trial  before  the  jury.  As  a  general  rule,  questions  must 
be  raised  at  the  trial,  or  they  will  not  be  open  here;  and  for  the  very 
obvious  reason,  that  the  opposite  party  may  have  the  proper  oppor- 
tunity to  supply  any  defects  in  his  proof  upon  the  points  excepted 
to.  But  as,  in  the  present  case,  the  facts,  as  stated  in  the  report,  and 
as  they  appear  to  be  conceded  by  both  parties,  show  the  objection, 
now  urged  and  relied  upon  in  defence,  to  be  one  that  could  not  be 
obviated  by  any  further  proof  on  the  part  of  the  plaintiff,  the  court 
have  felt  themselves  autliovized  to  consider  that  point  as  open,  and 
have  disposed  of  it  in  the  manner  already  stated.  The  result  is, 
thei'efore,  that  upon  the  case  as  now  stated,  the  plaintiff  cannot 
maintain  his  action.  New  trial  ordered.^ 

1  On  the  new  trial,  the  case  was  saved  for  the  consideration  of  the  full 
court,  and  it  was  hchi  that,  the  defendant  being  proved  to  hnve  been  in  pos- 
session of  the  land  at  the  time  of  his  deed  to  Samuel  Slater  and  John  Tyson, 
his  covenant  ran  with  the  land  to  their  assignees,    s.  c.  6  Met.  (Mass.)  439. 

See  Libby  v.  Hutchinson.  72  N,  H.  190. 


596  WEAD    V.    LARKIN  [CHAP.   IX 

WEAD  V.  LARKIN  et  Al. 
54  111.  489.     1870. 

Appeal  from  the  Circuit  Court  of  Cook  County;  the  TZon.  E.  8. 
Williams,  Judge,  presiding. 

This  was  an  action  of  covenant,  brought  by  Joshua  Larkin  and 
others  against  George  F.  Handing  and  Hezekiah  M.  Wead.  The 
declaration  alleges  the  breach  of  a  covenant  of  warranty  contained  in 
a  deed  of  conveyance,  executed  by  the  defendants  to  Curtis  Worden 
and  Albert  Worden,  and  that  the  father  of  the  plaintiffs,  by  con- 
veyance from  those  grantees,  became  the  assignee  of  their  title,  and 
of  the  covenant  of  warranty,  and  that  the  plaintiffs  succeeded  to  the 
same  rights  by  the  death  of  their  father. 

The  form  of  the  covenant  counted  on  is  as  follows :  "And  we,  the 
said  George  F,  Harding  and  H.  M.  Wead,  for  ourselves  and  our 
heirs,  do  covenant  to  and  with  the  said  Curtis  Worden  and  Albert 
Worden,  their  heirs  and  assigns,  that  we  will  forever  warrant  and 
defend  the  title  to  said  tract  of  land  against  all  patent  titles  what- 
ever, and  against  none  other." 

A  trial  resulted  in  a  finding  and  judgment  in  favor  of  the  plaintiffs. 
The  case  is  brought  to  this  court  by  appeal. 

The  appellant  contends  that  the  action  will  not  lie,  because,  at  the 
time  they  executed  the  deed  containing  the  covenant  sued  upon, 
the  covenantors  were  not  in  actual  possession  of  the  land,  and  had  no 
estate  in  it  of  any  kind,  and  therefore  the  covenant  did  not  run  with 
the  land,  and  the  grantee  of  the  immediate  covenantee  cannot  sue. 

Mr.  Chief  Justice  Lawrence  delivered  the  opinion  of  the  court : 

This  case  has  been  twice  before  this  court,  and  will  be  found  re- 
ported in  41  111.  415,  and  49  111.  99.  The  facts  are  set  forth  in  the 
opinion  in  41  111.  and  it  is  unnecessary  to  repeat  them  here.  After  a 
third  verdict  and  judgment  against  the  defendants  in  the  Circuit 
Court,  they  again  bring  the  record  here  and  submit  it  upon  a  ques- 
tion which  has  not  hitherto  been  raised.  It  is  now  for  the  first  time 
claimed,  that  the  action  will  not  lie,  because  the  defendants,  at  the 
time  they  executed  the  deed  containing  the  covenant  upon  which 
they  are  now  sued,  were  not  in  actual  possession  of  the  land,  and  had 
no  estate  in  it  of  any  kind.  It  is  contended,  in  such  cases,  the 
covenants  in  a  deed  do  not  run  with  the  land,  because  there  is  no 
estate  to  which  they  can  attach,  and,  therefore,  the  grantee  of  the 
immediate  convenantee  cannot  sue. 

It  is  true,  it  has  been  held  by  the  current  of  authorities,  that  the 
covenants  of  seisin,  of  a  right  to  convey,  and  that  the  land  is  free 
from  encumbrances,  being  in  presenfi,  if  broken  at  all,  are  broken  as 
soon  as  made,  and  becoming  at  once  mere  choses  in  action,  do  not 
run  with  the  land,  or,  in  other  words,  do  not  pass  to  the  grantee  of 
the  immediate  covenantee.     But,  even  on  this  point,  there  is  some 


WEAD    V.    LARKIN  597 

contradiction  in  the  authorities,  the  King's  Bench  having  held,  in 
Kiiigdon  v.  Nottle,  1  Maule  &  S.  355,  and  4  lb.  53,  that  the  assignee 
might  sue,  on  the  ground  that  the  want  of  seisin  is  a  continuing 
breach.  So,  too,  it  was  held  in  Admr.  of  Backus  v.  McCoy,  3  Ohio, 
211,  that  the  covenant  of  seisin  runs  with  the  land,  so  long  as  the 
purchaser  and  the  successive  grantees  under  him  remain  in  posses- 
sion, and  the  rule  is  enforced  by  the  court  with  very  cogent  reasoning. 

But  if  it  be  true  that  these  covenants  in  presenti  cannot  be  made 
the  basis  of  an  action  by  the  assignee,  it  is  not  denied  that  the  cove- 
nant of  warranty,  which  is  the  covenant  in  the  case  at  bar,  runs  with 
the  land  and  protects  the  grantee  of  the  covenantee.  This  Avas  settled 
in  Spencer's  Case,  5  Coke,  and  has  probably  never  since  been  denied. 
It  is  claimed,  however,  in  behalf  of  appellant  in  the  present  case,  that, 
although  this  covenant  runs  Avith  the  land,  yet,  if  the  covenantor  has 
neither  actual  possession  nor  legal  title,  there  is  no  estate  to  which  it 
can  attach,  and  it  does  not  pass  to  the  grantee  of  the  covenantee. 

In  support  of  this  position,  counsel  cite  the  case  of  Slater  v.  Raiv- 
son,  1  Mete.  456,  and  it  must  be  admitted,  this  doctrine  is  there 
announced.  The  court  say :  "  To  support  an  action  by  an  assignee, 
on  the  covenant  of  warranty,  it  is  necessary  that  the  warrantor  should 
have  been  seised  of  the  land,  for  by  a  conveyance  without  such  seisin, 
the  grantee  acquires  no  estate,  and  has  no  power  to  transfer  to  a 
subsequent  purchaser  the  covenants  in  his  deed;  because,  as  no  estate 
passes,  there  is  no  land  to  which  the  covenants  can  attach."  It  is, 
however,  admitted  by  the  court,  that  if  the  covenantor  is  seised  in 
fact,  though  without  title,  the  covenant  does  attach  and  pass  to  the 
assignee,  and  when  the  same  case  came  again  before  the  court,  at  a 
subsequent  term,  as  reported  in  6  Mete.  442,  the  plaintiff  was  allowed 
to  recover,  on  the  ground,  that  the  covenantor  had  cut  timber  and 
hoop  poles  from  the  land,  and  thus  had  such  a  seisin  as  caused  his 
covenants  to  attach  to  the  land  and  pass  to  the  grantee  of  the  cove- 
nantee. 

Notwithstanding  our  great  respect  for  that  court,  this  seems  to  us 
a  very  striking  instance  of  the  sacrifice  of  substance  to  shadow  — 
the  true  meaning  and  spirit  of  a  rule,  to  the  mere  form  of  words  in 
which  it  has  been  found  convenient  to  express  it. 

A  reason  at  least  technically  sound,  whether  in  fact  satisfactory  or 
not,  can  bo  given  why  covenants  in  presenti  do  not  pass  to  the 
assignee.  Tlie  reason  assigned  for  this  rule  by  the  courts  which  main-  . 
tain  it,  is,  as  already  stated,  that  these  covenants,  if  broken  at  all,  are 
broken  as  soon  as  made,  and  the  covenantee  thus  acquires  a  mere 
chose  in  action,  which,  under  the  rules  of  the  common  law,  cannot 
pass  to  an  assignee  by  a  conveyance  of  the  land.  But  not  so  with 
the  covenant  of  warranty.  That  operates  only  in  fiituro,  and  is 
only  broken  by  eviction.  It  is  admitted  that  it  attaches  to  the  land 
and  passes  to  the  assignee,  if  the  covenantor  has  a  seisin  in  fact, 
though  a  wrongful  seisin.     Why,  then,  should  it  not  pass  to  the 


598  WEAD    V.    LAllKIN  [CHAP.    IX 

assignee  of  the  covenantee,  if  tlie  land  is  vacant  at  the  time  the 
covenant  is  made,  and  the  covenantee,  as  in  the  present  case,  enters 
under  his  deed  and  then  conveys?  If  the  land  were  adversely  held 
at  the  time  of  the  first  conveyance,  and  if  the  common  law,  render- 
ing such  a  conveyance  void,  were  still  in  force,  it  might  be  said, 
the  covenants  were  void. as  to  the  covenantee.  But  it  is  admitted 
in  the  case  at  bar,  as  it  was  in  the  Massachusetts  case,  that  the  cove- 
nant was  a  valid  covenant  to  ihe  covenantee,  even  though  the  cove- 
nantor was  not  in  possession  of  the  land.  But,  it  was  said  it  did 
not  pass  to  the  assignee,  because  it  attached  to  the  estate,  and  the 
assignee  took  no  estate.  Yet,  if  a  wrongful  seisin  on  the  part  of  the 
assignor  would  cause  it  to  attach  to  the  estate,  and  pass  to  remote 
grantees,  and  if,  in  the  absence  of  seisin  by  the  covenantor,  the  cove- 
nant was  valid  to  the  covenantee,  as  is  admitted,  we  should  like  to 
inquire  why,  as  soon  as  the  covenantee  took  possession  of  the  vacant 
land,  the  covenant  did  not  then  at  once  attach  to  the  land,  and  pass 
with  the  conveyance  of  the  covenantee?  If  the  question  of  posses- 
sion is  at  all  important  in  reference  to  the  passing  of  this  cove- 
nant to  an  assignee,  it  is  not  the  possession  of  the  covenantor  that 
is  material,  but  that  of  the  covenantee  when  he  makes  his  conveyance. 
Then  is  the  first  time  that  the  covenant  passes  as  attached  to  the 
estate.  When  first  made,  it  is  made  to  the  covenantee  directly  and 
in  person,  and  he  takes  its  benefit  by  virtue  of  his  contract,  and  not 
as  an  incident  to  the  estate.  It  can  certainly  never  be  held,  that  if 
he  takes  possession  and  is  evicted  by  paramount  title,  he  cannot  re- 
cover, because  the  land  was  vacant  when  the  deed  was  made  to  him. 
Even  then,  if  we  concede  that  he  must  take  possession  before  he  can 
pass  the  covenant  to  his  grantee,  as  attached  to  the  land,  we  are 
wholly  unable  to  see  why  it  does  not  pass  if  he  has  taken  possession,  or 
what  the  possession  or  non-possession  of  the  covenantor,  when  the 
covenant  was  made,  has  to  do  with  its  passing  to  the  grantee  of  the 
covenantee.  The  cases  of  Moore  v.  Merrill,  17  N.  H.  81;  Beddoe's 
Exrs.  V.  Wadsworth,  21  Wend.  120,  and  Fowler  v.  Poling,  6  Barb. 
166,  cited  by  counsel  for  appellant,  so  far  from  being  inconsistent 
with  the  position  we  have  here  taken,  seem  rather  to  support  it.  The 
last  case  was  first  heard  at  special  term  before  a  single  judge,  and 
is  reported  in  2  Barb.  306.  It  was  held,  as  in  the  Massachusetts  case, 
that  as  the  covenantor  had  no  possession,  the  covenant  did  not  pass 
to  the  assignee.  An  appeal  was  taken  to  the  General  Term,  and  it 
was  there  held,  the  conveyance  by  the  covenantee  in  possession  passed 
the  covenant  to  the  assignee. 

The  case  of  Neshift  v.  NeshiU,  1  Taylor  N.  C.  Rep.,  also  cited  by 
counsel  for  appellant,  was  one  in  which  the  grantors,  by  the  face  of 
their  deed,  did  not  purport  to  convey  their  own  land,  but  that  of  their 
daughter,  and  covenanted  that  she  should  make  good  the  title  on  her 
coming  of  age.  The  court  held  the  covenants  were  collateral  to  the 
title,  and  did  not  pass  to  the  assignee.     The  decision  is  based  on 


WEAD    V.    LARKIN 


599 


the  peculiar  character  of  the  deed  and  covenants.  The  question  was, 
whether  the  covenants  in  the  peculiar  deed  before  the  court  could  pass 
to  an  assignee,  and  did  not  turn  upon  the  question  of  possession. 

Our  conclusion  is,  that  where  the  covenantee  takes  possession  and 
conveys,  the  covenant  of  warranty  in  the  deed  to  him  will  pass  to 
his  grantee,  although  the  covenantor  may  not  have  been  in  possession 
at  the  time  of  his  conveyance.     This  is  the  case  at  bar. 

It  is  not,  however,  to  be  supposed,  because  we  do  not  now  lay  down 
a  broader  rule  than  is  required  by  the  case  before  us,  that  we  hold,  by 
implication,  the  covenants  would  not  pass  if  the  immediate  cove- 
nantee should  convey  before  taking  possession.  On  the  contrary,  it 
would  much  better  comport  with  the  interests  of  this  State,  where 
vacant  lands  are  so  largely  an  article  of  commerce,  to  hold  that  the 
covenantor,  whether  sued  by  an  immediate  or  remote  grantee,  is 
estopped  by  his  deed  from  denying  that  he  had  an  estate  in  the  lands 
to  which  his  covenants  would  attach,  and  which  would  pass  by  deed. 
The  covenant,  it  is  true,  passes  to  the  assignee  as  appendant  to  the 
land,  but  this  does  not  mean  the  actual  title  to  the  land,  for,  in  such 
cases  no  covenants  would  be  needed.  They  are  intended  as  a  protec- 
tion to  the  covenantee  and  his  assignees,  in  case  the  covenantor  has 
no  title,  and  it  is  a  very  extraordinary  mode  of  reasoning  which 
leads  to  the  conclusion,  that,  if  the  covenantor's  want  of  title  is  also 
accompanied  by  a  want  of  possession,  for  that  reason  he  should  be 
excused  from  liability  to  the  remote  grantee.  We  should  be  inclined 
rather  to  say,  tliat  although  the  covenant  of  warranty  is  attached  to 
the  land,  and  for  tjuit  reason  is  said,  in  the  books,  to  pass  to  the 
assignee,  yet  this  certainly  does  not  mean  that  it  is  attached  to  the 
paramount  title,  nor  does  it  mean  that  it  is  attached  to  an  imperfect 
title,  or  to  possession,  and  only  passes  with  that,  but  it  means,  simply, 
that  it  passes  by  virtue  of  the  privity  of  estate,  created  by  the  suc- 
cessive deeds,  each  grantor  being  estopped  by  his  own  deed  from 
denying  that  he  has  conveyed  an  estate  to  which  the  covenant  would 
attach. 

In  the  case  at  bar,  the  defendants  conveyed  to  the  Wordens,  and  in 
their  deed  covenanted  with  them,  their  heirs  and  assigns,  that  they 
would  forever  warrant  and  defend  the  premisesv against  patent  titles. 
The  land  was  then  vacant.  The  Wordens  took  possession  under  their 
deed,  and  subsequently  sold  and  conveyed  to  Larkin,  and  delivered 
to  him  the  possession.  An  action  of  ejectment  was  brought  against 
■  him,  pending  which  he  died,  and  his  heirs,  the  present  plaintiffs,  hav- 
ing been  made  parties,  judgment  passed  against  them,  and  they  were 
evicted  by  a  paramount  patent  title.  The  covenant  of  warranty  in 
defendant's  deed  was  never  broken  until  then.  It  was  never  a  mere 
chose  in  action  in  the  hands  of  the  immediate  covenantees.  No  one 
but  these  plaintiffs  has  ever  had,  or  can  have,  a  right  of  action  on 
this  covenant.  If  they  cannot  have  it,  the  covenant  which  was  in- 
serted in  the* deeds  of  defendants,  in  order  to  give  perpetual  security 


600  WEAD    V.    LARKIN  [CHAP.    IX 

to  both  immediate  and  remote  grantees,  has  become  a  dead  letter. 
And  why?  Tlie  only  reason  that  can  be  given  is,  because  the  cove- 
nantors, instead  of  having  a  partial  title  or  a  tortious  possession, 
had  no  title  nor  possession  of  any  sort.  Their  security  is  to  be  found 
in  the  completeness  with  which  their  covenant  has  been  broken. 
The  reasoning  does  not  commend  itself  to  our  judgment. 

Judgment  affirmed} 

1  TiJlolson  V.  Pritchard,  60  Vt.  94,  accord.     See  Wallace  v.  Pereles,  109 
Wis.  316. 


CHAPTEK   X 

EXECUTION  OF  DEEDS 

SECTIOIs^    I 

SIGNING   AND    SEALING 

COOCH  AND  Another  v.  GOODMAIT 
2  Q.  B.  580,  596-598.     1842. 

Lord  Denman,  C.  J.  said :  "  The  first  question  is,  -whether  it  is 
necessary  by  the  Statute  of  Frauds  that  a  lease  under  seal  should  also 
be  signed.  The  words  of  the  first  section  are,  '  all  leases,  estates, 
interests  of  freehold,  or  terms  of  years,  or  any  uncertain  interest  of, 
in,  to  or  out  of  any  messuages,'  &c.,  '  made  or  created  by  livery  and 
seisin  only,  or  by  parol,  and  not  put  in  writing,  and  signed  by  the 
parties  so  making  or  creating  the  same,  or  their  agents  thereunto 
lawfully  authorized  by  writing,  shall  have  the  force  and  effect  of 
leases  or  estates  at  Avill  only.' 

"  The  plea  in  this  case  is  framed  in  the  very  words  of  the  plea  in 
the  case  of  Cardwell  v.  Lucas,  2  M.  &  W.  Ill,  in  which  it  does  not 
seem  to  have  occurred  to  the  court  or  the  counsel  that  the  words 
'  signed  by  the  parties'  &c.,  might  apply  only  to  instruments  not 
under  seal.  It  is  now  argiied,  that  inasmuch  as  the  previous  words 
are  '  made  or  created  by  livery  and  seisin  only,  or  by  parol,'  the  dis- 
tinction apparently  intended  to  be  established  by  the  Statute  of 
Frauds  was  between  estates  or  interests  created  by  a  formal  instru- 
ment, and  those  created  by  mere  matter  in  pais,  which  must  be  estab- 
lished by  the  fallible  recollection  of  witnesses.  Mr.  Justice  Black- 
stone,  in  his  Commentaries,  vol.  ii.  p.  306,  lays  it  down  that  the 
Statute  of  Frauds  has  restored  the  old  Saxon  form  of  signing,  and 
superadded  it  to  sealing  and  delivery  in  a  case  of  a  deed.  Mr.  Pres- 
ton, on  the  other  hand,  in  his  edition  of  Sheppard's  Touchstone,  p. 
56,  note  24,  treats  this  passage  in  Blackstone  as  a  mistake  from  not 
attending  to  the  words  of  the  Statute,  and  holds  it  clear  that  no 
signature  is  necessary  in  the  case  of  a  deed.  It  is  curious  that  the 
question  should  now  for  the  first  time  have  arisen  in  a  court  of  law, 
and  perhaps  as  curious  that  it  is  not  necessary  now  to  determine  it; 
for  although  the  plea  negatives  signature  only,  and  not  sealing  or 
delivery,  by  the  plaintiffs  and  the  deceased,  yet  it  appears  by  the 
indenture,  as  set  out  on  oyer,  and  thereby  become  part  of  the  declara- 
tion, that  it  was  not  sealed  by  the  plaintiffs."  ^ 

1  See  Cherry  v.  Heming,  4  Exch.  631,  636;  1  Williston,  Contracts,  §  206. 

601 


602  LORD   SAY   AND   SEAL's    CASE  [CHAP.   X 

LORD  SAY  AND  SEAL'S  CASE 
10  Mod.  40.    1711. 

Upon  a  trial  at  bar  in  tlie  Court  of  Queen's  Bench,  in  an  ejectment 
brought  by  the  heirs  at  law  against  the  Lord  Say  and  Seal,  who 
claimed  as  heir  in  tail; 

The  single  question  was,  Whether  or  no  a  common  recovery  that 
was  suffered  in  order  to  dock  the  entail,  was  good  or  not  ? 

The  objection  to  the  recovery  was,  that  there  was  no  tenant  to  the 
prcecipe. 

To  prove  the  recovery  good,  a  deed  bearing  date  of  the  twenty-third 
of  October,  1701,  directing  the  uses  of  the  recovery,  and  the  fine, 
viz.  the  chirograph  of  the  fine,  and  common  recovery,  were  produced. 

[The  court  held  that  the  fine  had  created  a  good  tenant  to  the 
prcecipe.     This  part  of  the  case  is  omitted.] 

After  this,  there  was  a  deed  of  bargain  and  sale  enrolled  produced, 
which  would  have  made  a  good  tenant  to  the  prcecipe  had  the  opinion 
of  the  court  been  against  the  plaintiffs,  as  it  was  for  them. 

But  to  this  deed  this  objection  was  made,  that  it  was  a  tripartite 
deed,  and  ran  to  this  effect :   "  This  indenture,  made  the  day  of 

,  between  of  the  one  part,  and 

of  the  second  part,  and  of  the  third  part, 

witnesseth,  That  for  and  in  consideration  of  the  sum  of  five  shillings, 
to  him  in  hand  paid,  hath  given  and  granted,  6:c."  N^ow  here  they 
said  the  person  granting  is  wanting,  "  hath  granted,"  without  saying 
who  hath  granted,  and  consequently  this  deed  passes  nothing,  and 
can  therefore  make  no  tenant  to  the  prcecipe. 

The  court  was  of  opinion,  that  the  deed  was  good.  Had  this  been 
a  tripartite  deed,  without  this  slip,  there  had  been  no  doubt  at  all 
in  the  case;  but  the  deed  is  tripartite,  and  "hath"  in  the  singular 
number,  and  therefore  all  the  doubt  is  to  whom  the  "  hath  "  refers. 
Deeds  are  to  be  interpreted,  as  much  as  possible,  according  to  the 
intention  of  the  parties.  The  case  of  Has! e wood  v.  Mansfield,  2  Vent. 
]96,  was  a  case  upon  pleading,  where  greater  strictness  is  required, 
and  therefore  does  not  come  up  to  the  case  in  point.  .The  case  of 
Tretheivy  v.  Ellesdon,  2  Vent.  141,  does.  Many  are  the  instances 
where  the  penalties  of  bonds  are  put  into  very  strange  and  even 
false  Latin,  and  yet  held  good.  See  1  Salk.  462 ;  3  Salk.  74.  The 
case  in  question  is  the  case  of  a  bargain  and  sale,  and  therefore  to 
be  interpreted  more  favorably  than  a  deed.  By  the  common  law, 
nothing  passed  by  deed  of  bargain  and  sale  but  the  use,  and  the 
remedy  was  only  in  chancery;  but  now  Statute-law  has  passed  the 
estate  to  the  use.  The  intention  of  the  deed  is  plain,  if  this  deed 
do  not  make  Lord  Say  grantor,  as  to  him  it  would  have  no  effect 
at  all,  who   yet  sealed  it.     According   to  the  common   rules  of  in- 


SECT.    l]  CATLIN    V.    WARE  603 

denture,  the  words  of  the  deed  are  the  words  of  all  the  parties,  but 
Lord  Say  is  a  party,  therefore  he  has  granted. 

The  truth  of  the  matter  was,  that  it  being  feared  this  slip  in  the 
deed  would  be  fatal  to  the  recovery,  this  other  contrivance  of  the 
fine  was  judged  to  be  the  best  way  of  supporting  it. 

Though  the  opinion  of  the  court  was  clear  and  plain  for  the  plain- 
tiffs in  both  points,  yet  the  Lord  Say  and  Seal  prayed  a  bill  of 
exceptions.^ 


CATLIX  V.  AVAKE  2 
9  Mass.  218.    1812. 

This  was  a  Avrit  of  dower,  to  which  the  tenant  pleaded  in  bar:  — 
1st  That  the  demandant's  husband  Joseph  Catlin  v>'as  never  seised 
kc.  on  which  issue  was  joined.  2d  That  the  said  Joseph,  being  seised 
in  his  demesne  as  of  fee,  on  the  28th  day  of  March,  1793,  by  his  deed 
of  that  date  duly  acknowledged,  (Src,  for  a  valuable  consideration, 
bargained  and  sold  the  same  land,  in  which  the  demandant  claims 
her  dower,  to  one  David  Horton  in  fee  simple;  and  that  the  said 
Abigail,  by  the  consent  of  her  husband,  for  the  consideration  in  the 
said  deed  expressed,  and  also  of  one  dollar  paid  her  by  the  said  David, 
assented  and  agreed  to  the  same  deed  of  the  said  Joseph,  and  then 
and  there  by  her  act  and  consent,  signified  by  her  affixing  her  seal  to 
the  said  deed,  and  subscribing  her  mark  thereto,  she  being  unable 
to  write  her  name,  barred  herself  of  all  right  of  dower  in  the  same 
premises  and  every  part  thereof;  by  virtue  whereof  the  said  David 
became  seised  in  fee  of  the  same  premises,  free  and  exemi^t  from  all 
claim  demand  or  right  of  dower  of  the  said  Abigail  therein. 

The  demandant  replied,  that  she  did  not  by  her  act  and  consent 
signified,  kc,  bar  herself,  kc,  and  tendered  an  issue  to  the  country, 
which  was  joined  by  the  tenant. 

The  several  issues  thus  joined  were  tried  at  the  last  April  Tin-m  of 
this  court  in  this  county,  before  Sedgiricl-,  J.,  from  whose  report  it 
appears,  that  the  seisin  of  the  demandant's  husband  and  her  cover- 
ture were  agreed,  as  alleged  in  the  writ. 

The  tenant  produced  the  deed  of  Joseph  Catlin  to  David  Horton, 
mentioned  in  tli(>  pleadings.  It  purported  a  conveyance  in  fee  of 
the  land,  in  wliicli  doAver  is  demanded,  and  to  it,  after  the  name  and 
seal  of  her  husband,  were  set  the  demandant's  seal  and  mark.  But 
her  name  was  not  otherwise  mentioned  in  the  deed,  nor  were  there 
any  words  therein  purporting  or  implying  a  release  of  her  right  of 
dower.  The  deed  was  acknowledged  by  the  husband,  and  recorded; 
but  there  Avas  no  acknowledgment  by  tlie  wife 

1  See  Dnrf  v.  Clnyfnv.  4  Now  R.  221. 

2  Part  of  the  case  is  omitted. 


604       AGRICULTURAL    BANK    OF    MISSISSIPPI    V.    RICE       [CHAP.    X 

On  the  part  of  the  tenant  it  was  insisted  at  the  trial,  that  the 
latter  issue  was  proved  on  his  behalf.  But  the  judge  directed  a 
verdict  on  both  issues  in  favor  of  the  demandant;  referring  to  the 
decision  of  the  court,  the  question  whether  that  direction  was  right. 

Curia.  Two  objections,  made  to  the  deed  read  in  evidence  at  the 
trial  of  this  cause,  have  been  replied  to  by  the  counsel  for  the  tenant. 

As  to  the  second,  the  want  of  an  acknowledgment  by  the  wife  we 
think  an  acknowledgment  unnecessary  in  the  case.  One  party  to  a 
deed  acknowledging  it  gives  notoriety  to  it,  and  that  is  the  whole 
that  is  necessary.  Though  a  deed  be  acknowledged  and  recorded, 
yet  on  the  issue  of  7ion  est  fad  urn  the  execution  of  the  deed  is  still 
to  be  proved,  as  if  it  had  not  been  acknowledged.  Inhabitants  of 
Worcester  v.  Eaton,  11  Mass.  K.  379;  13  Mass.  Eep.  371.  Neither 
was  an  acknowdedgment  by  the  wife  necessary  in  order  to  make  the 
deed  binding  on  her.  She  must  know  her  own  acts,  and  is  bound 
by  such,  as  the  law  authorizes  her  to  execute. 

The  other  objection  to  this  deed  has  much  more  weight  in  it,  and 
is  indeed  fatal  to  the  defence  of  the  action.  A  deed  cannot  bind  a 
party  sealing  it,  unless  it  contains  words  expressive  of  an  intention 
to  be  bound.  In  this  case,  whatever  may  be  conceived  of  the  inten- 
tion of  the  demandant  in  signing  and  sealing  the  deed,  there  are  no 
words  implying  her  intention  to  release  her  claim  of  dower  in  the 
lands  conveyed  which  must  have  been,  to  give  it  that  operation.  It 
was  merely  the  deed  of  the  husband,  and  the  wife  is  not  by  it  barred 
of  her  right  to  dower.^ 


THE  AGRICULTURAL  BANK  OF  MISSISSIPPI  and 
Others  v.  RICE  and  Others 

4  How.  (U.  S.)  225.    1846.2 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Mississippi.  The  opinion  of  the  court  presents  the  neces- 
sary facts  and  the  questions  decided. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  being  an  action  of  ejectment,  the  only  question  between  the 
parties  is  upon  the  legal  title. 

It  is  admitted  in  the  exception,  that  Mary  Rice  and  Martha  Phipps, 
lessors  of  the  plaintiff,  were  each  of  them,  as  heirs  at  law  of  Adam 
Bower,  entitled  to  an  undivided  third  part  of  the  premises  mentioned 
in  the  declaration,  in  fee-simple.    In  order  to  show  title  out  of  them, 

1  Contra,  reluctantlv,  on  the  ground  of  established  custom  in  New  Hamp- 
shire, Burgc  v.  Smith,  27  N.  H.  332;  and  see  Woodward  v.  Seaver,  38  N.  H.  29. 

Compare  Dinkins  v.  Latham.  154  Ala.,  90;   Isler  v.  Isler,  110  Miss.  419. 

2  This  case  is  printed  from  Mr.  Justice  Curtis's  edition  of  the  Reports  of 
Decisions  in  the  Supreme  Court  of  the  United  States. 


SECT.    l]      AGRICULTURAL   BANK   OF    MISSISSIPPI    V.   RICE  605 

the  plaintiffs  in  error  relied  upon  the  bond  of  conveyance  and  deed, 
mentioned  in  the  statement  of  the  case,  both  of  which  were  signed 
and  sealed  by  these  lessors  of  the  plaintiff,  but  were  executed  while 
they  were  femes  covert. 

As  regards  the  bond,  it  would  not  have  transferred  the  legal  title, 
even  if  all  the  parties  had  been  capable  of  entering  into  a  valid  and 
binding  agreement.  But  as  to  the  femes  covert  who  signed  it,  it  was 
merely  void,  and  conferred  no  right,  legal  or  equitable,  upon  the 
obligees. 

The  deed,  also,  is  inoperative  as  to  their  title  to  the  land.  In  the 
premises  of  this  instrument,  it  is  stated  to  be  tlie  indenture  of  their 
respective  husbands  in  right  of  their  wive§,  of  the  one  part,  and  of 
the  grantees,  of  the  other  part, —  the  husbands  and  the  grantees 
being  specifically  named;  and  the  parties  of  the  first  part  there 
grant  and  convey  to  the  parties  of  the  second  part.  The  lessors  of  the 
plaintiff  are  not  described  as  grantors;  and  they  use  no  words  to  con- 
vey their  interest.  It  is  altogether  the  act  of  the  husbands,  and  they 
alone  convey.  Now,  in  order  to  convey  by  grant,  the  party  pos- 
sessing the  right  must  be  the  grantor,  and  use  apt  and  proper  words 
to  convey  to  the  grantee,  and  merely  signing  and  sealing  and  ac- 
knowledging an  instrument,  in  which  another  person  is  grantor,  is 
not  sufficient.  The  deed  in  question  conveyed  the  marital  interest 
of  the  husbands  in  these  lands,  but  nothing  more. 

It  is  unnecessary  to  inquire  whether  the  acknowledgment  of  the 
femes  covert  is  or  is  not  in  conformity  with  the  Statute  of  Missis- 
sippi. For,  assuming  it  to  be  entirely  regular,  it  would  not  give 
effect  to  the  conveyance  of  their  interests  made  by  the  husbands  alone, 
i^nd  as  to  the  receipt  of  the  money  mentioned  in  the  testimony,  after 
they  became  sole,  it  certainly  could  not  operate  as  a  legal  convey- 
ance, passing  the  estate  to  the  grantee,  nor  give  effect  to  a  deed 
which  as  to  them  was  utterly  void. 

The  judgment  of  the  Circuit  Court  is  therefore  affirmed.^ 

1  And  so  Fitc  Porter  &  Co.  v.  Kennamcr,  90  Ala.  470;  Pcabody  v.  Hewett, 
52  Me.  33,  49,  50;  Jcuinn  v.  Johnson,  74  N.  J.  L.  529.  And  compare  Flagg  v. 
Bean,  25  N.  H.  49,  62,  63. 

But  see  Sterling  v.  Park,   129  Ga.  309;   Hrouska  v.  Janke,  66  Wis.  252. 

A  deed  purporting  to  be  a  conveyance  of  land  by  Edward  Jones,  and  ac- 
knowledged by  him  to  be  his  deed,  passes  his  intere.'^t  in  the  land,  although  the 
signature  thereto  reads  "  Edmund  Jones."  So  said  by  the  Supreme  Court 
of  California  in  Middlvton  v.  Findla,  25  Cal.  76  (1864). 

But  in  Boothroijd  v.  Engles,  23  Mich.  19  (1871),  the  iilainfiff  in  ejectment., 
to  prove  the  transfer  of  the  title  to  the  /onw  from  Hiram  Sherman,  a  former 
holder,  to  one  Rawles,  under  whom  the  plaintiff  claimed,  offered  in  evidence 
an  office  copy  of  a  deed  which  purported  to  be  a  conveyance  of  the  land  from 
Hiram  Sherman  to  said  Rawles,  and  which  Hiram  Sherman  had  acknowledged 
to  be  his  deed,  but  the  signature  to  which  read  "  Harmon  Sherman."  The 
court  rejected  the  deed,  and  the  plaintiff  .alleged  exceptions,  which  were  over- 
ruled by  the  Supreme  Court  of  Michigan,  the  court  holding  that  the  deed 
was  not  admissible,  at  least  until  some  "  foundation  had  been  laid  to  connect 
the  two  variant  names." 


606  SEALS  [chap.  X 


WILLISTON,  CONTRACTS,  §§  207-209;  pages  413  to  420, 
including  the  footnotes. 

It  is  said  by  Lord  Coke  that  a  seal  is  wax  on  which  an  impression 
has  been  made,  and  that  the  wax  without  the  impression  wouhl  not 
constitute  a  seal.^  But  the  common  law  has  everywhere  in  recent 
times  much  relaxed  this  rule.  Everywhere  to-day  any  substance 
as,  for  instance,  a  wafer  -  attached  as  a  seal  to  a  document  would 
be  held  sufficient.  So  an  impression  made  upon  the  paper  as  in  the 
case  of  the  seals  ordinarily  used  by  notaries  and  corporations  would 
be  sufficient.^  It  seems  logically  difficult  starting  from  these  recog- 
nized extensions  of  the  early  rule  to  deny  validity  to  any  written  or 
printed  addition  to  a  document  which  was  in  fact  intended  as  a  seal, 
since  ink  is  superimposed  on  the  paper  and  an  impression  is  also 
made  on  it;  and  many  courts  seem  prepared  to  accept  this  conse- 
quence. Thus  a  scroll  or  scrawl  has  been  held  enough.*  So  the  word 
"  seal,"^  or  the  letters  L.  S.  (standing  for  locus  sigilU).^ 

Perhaps  the  extreme  limit  was  reached  in  a  Pennsylvania  case  '^ 
where  it  was  held  that  a  horizontal  dash  less  than  an  eight  of  an  inch 

1  Institutes,  Book  III,  169. 

-  Tasker  v.  Bartlett,  5  Cush.  359.  Apparently  the  relaxation  was  first 
brought  about  by  presuming  from  the  recitals  in  the  deed  that  an  impression 
with  the  finger  was  made  on  the  wafer. 

3  In  re  Sandilands,  L.  R.  6  C.  P.  411,  412;  National  Provincial  Bank  v. 
Jackson,  33  Ch.  D.  1,  11;  Hendee  v.  Pinkcrton,  14  Allen,  381;  Royal  Bank  v. 
Grand  Junction  Co.,  100  Mass.  444,  97  Am.  Dec.  115;  Beardsley  v.  I\.night,  4 
Vt.  471,  479. 

4  United  Stxites  v.  Stephenson s  Exec,  1  McLean  462;  Anderson  v.  Wil- 
burn,  8  Ark.  155;  Williams  v.  Greer,  12  Ga.  459;  Harden  v.  Webster,  29  Ga. 
427,  429;  Eames  v.  Preston,  20  111.  389;  Trasher  v.  Everhart,  3  G.  &  J.  234; 
Line  v.  lAne,  119  Md.  403,  86  Atl.  1032;  Thompson  v.  Poe,  104  Miss.  586,  61 
So.  656;  Michenor  v.  Kinney.  Wright,  459;  Parks  v.  Duke,  2  McCord  380; 
Whitley  v.  Davis'  Lessee,  1  Swan.  333,  335;  Jones  v.  Logwood,  1  Wash.  (Va.) 
56.    But  see  Adam  v.  Kerr,  1  B.  &  P.  360. 

5  Jackson  v.  Security  Mut.  Lije  Ins.  Co.,  233  III.  161,  84  N.  E.  198; 
Quincy  Horse  Ry.  Co.  v.  Omer,  109  111.  App.  238;  Jeff  cry  v.  Underwood, 
1  Ark.  108;  Comerford  v.  Cobb,  2  Fla.  418;  Bacon  v.  Green,  36  Fla.  325, 
18  So.  870;  Pierce  v.  Lacy,  23  Miss.  193;  Groner  v.  Smith,  49  Mo.  318; 
Lorah  v.  Nissley,  156  Pa.  St.  329,  27  Atl.  242;  McClamroch.  etc.,  Co.  v. 
Bristow,  94  S.  C.  252,  77  S.  E.  923;  Philip  v.  Steams,  20  S.  D.  220,  105  N.  W. 
467;  Whitley  v.  Davis'  Lessee,  1  Swan,  333;  English  v.  Helms,  4  Tex.  228; 
Connor  v.  Autrey,  18  Tex.  427. 

fi  Jacksonville,  etc.,  Nav.  Co.,  v.  Hooper,  160  U.  S.  514,  40  L.  Ed.  515,  16 
S.  Ct.  379;  G.  V.  B.  Min.  Co.  v.  First  Nat.  Bank,  95  Fed.  23,  36  C.  C.  A. 
633;  Bertrand  v.  Byrd,  4  Ark.  195;  Hastings  v.  Vaughn,  5  Cal.  315;  Langley 
V.  Owens,  52  Fla.  302.  42  So.  457;  Stansell  v.  Corley,  81  Ga.  453,  8  S.  E.  868; 
Ankeny  v.  McMahon,  4  III.  12;  Lorah  v.  Nissley,  156  Pa.  St.  329,  27  Atl. 
242;  Osbom  v.  K:istlcr,  35  Ohio  St.  99;  McKain  v.  Miller,  1  McMuJl.  (S.  C.) 
313;  Buckner  v.  Mackay.  2  Leigh,  488.  But  see  Woodbury  v.  United  States 
Casualty  Co.,  2S4  111.  227,  120  N.  E.  8. 

7  Hacke/s  Appeal,  121  Pa.  192,  15  Atl.  500,  1  L.  R.  A.  861. 


SECT.    l]  SEALS  607 

long  was  a  sufficient  seal.  A  few  courts,  however,  still  maintain  a 
stricter  rule;  and  while  not  denying  the  sufficiency  of  wafers  or  of 
such  impressions  on  paper  as  are  made  by  notaries'  seals,  decline  to 
accept  as  seals  a  mere  written  or  printed  word  or  device.^  In  many 
States  statutes  have  declared  that  written  or  printed  additions  to 
the  paper  are  sufficient.'-* 

Under  statutes  which  allow  the  use  of  a  scroll  or  scrawl  for  a 
seal,  all  kinds  of  informal  written  or  printed  substitutes  for  sealing 
are  permissible;  as,  for  instance,  the  written  or  printed  word  seal.^" 

8  Woodbury  v.  I'mtcd  States  Casualty  Co.,  2M  111.  227,  120  X.  E.  8 
(letters  [L.  S.]  held  insufficient  at  common  law  and  therefore  in  another 
State  where  the  instrument  was  executed  the  law  of  which  was  not  proved) ; 
McLaughlin  v.  Randall,  66  Me.  266  (scroll  msufficient) ;  Manning  v.  Perkim, 
86  Me.  419,  29  At.  1114  (printed  word  [seal]  insuflicient) ;  Bates  v.  New 
York  Central  R.  Co.,  10  Allen,  251  {jacsimile  of  corporate  seal  printed  on 
document  insufficient.  This  was  held  sufiicient  in  Woodman  v.  York,  etc., 
R.  Co.,  50  Me.  549)  ;  Bh^hop  v.  Globe  Co.,  135  Ma;ss.  132  (printed  word 
[seal]  insufficient);  Providence,  etc.,  Co.  v.  Crahan  Engravinq  Co.,  24  R.  I. 
175,  52  Atl.  804  (written  scroll  containing  the  word  seal,  insufficient) ;  Beard- 
sley  V.  Knight,  4  Vt.  471    (written  word  seal  insufficient.) 

"  Alabama,  Code  (1907),  §  3363.  An  instrument  piu-porting  to  be  imder 
seal  has  the  .siime  effect   as  if  a  seal  were  affixed. 

California,  Civ.  Code,  §  193.  A  scroll  or  the  word  seal  after  the  signature 
is  sufficient. 

Colorado,  Mills  Stat.   (1912),  §   824.     A  scroll   is  enough. 

Connecticut,  Gen.  Stat.  (1918),  §  5742.  The  word  seal  or  the  letters  L.  S. 
are  sufficient. 

Florida,  Comp.  Laws  (1914),  §  24M.  A  scrawl  or  scroll  written  or  printed 
is  sufficient. 

Georgia,  Code,  §  5.  A  scrawl  or  any  other  mark  intended  as  a  seal 
shall  be  held  as  such. 

Idaho,  Rev.  Stat.  (1908),  §§  13,  5989.  Impression  on  the  paper  is  enough, 
or  a  scroll,  or  the  word  seal. 

Illinois,  Jones  &  Addington's  Stat.  (1913),  §  2223.  A  scrawl,  affixed  by 
way  of  a  seal,  has  the  same  effect  as  a  seal. 

Michigan,  Comp.  Laws  (1916),  §  11740.  A  scroll  or  device  used  as  a 
seal  has  the  same  effect  as  a  seal. 

New  Jersey,  Comp.  Stat.  (1911),  pp.  1540,  3776.  A  scroll  or  other  device  is 
sufficient. 

New  Mexico,  Comp.  Laws  (1897),  §  3932.    A  scroll  is  sufficient. 

New  York,  Gen.  Const.  Law,  §  44.  A  seal  shall  consist  of  a  wafer,  wax, 
or  other  similar  adhesive  substance  or  of  paper  or  other  similar  substance, 
affixed  thereto  by  mucilage  or  other  adhesive  substance,  or  of  the  word  seal 
or  the  letters  L.  S.  opppo.^ite  the  signature. 

Oregon,  Lord's  Oreg.  Laws  (1910),  §  775.  Impression,  wafer,  wax.  paper, 
scroll,  or  other  .sign  made  with  a  pen,  constitutes  a  seal. 

Rhode  Island,  General  Laws  (1909),  c.  32,  §  14.    An  impression  is  sufficient. 

South  Dakota,  Comp.  Laws  (1913),  §  2473.    Like  Rhode  Island. 

Utah,  Comp.  Laws  (1917).  §§  5726,  7105.  A  scroll,  printed  or  written,  or 
the  word  seal  is  sufficient. 

Virginia,  Code   (1904),  §§  5  (12).  2841.     A  -scroll  is  sufficient. 

West  Virginia,  Code  (1913),  §  344.    A  scroll  written  or  printed  is  sufficient. 

Wisconsin,  Stat.  (1915),  §  2215.    A  scroll  or  device  as  a  seal  is  sufficient. 

10  Bertrand  v.  Byrd,  4  Ark.  195:  .lack.son  v.  Security  Mut.  L.  I.  Co.,  233 
III.  161,  84  N.  E.  198;  Whittington  v.  Clarke,  16  Miss.  4S0;  Buckner  v.  Mac- 


608  SEALS  [chap.  X 

As  long  as  the  question  whether  an  instrumen't  was  under  seal  de- 
pended on  whether  a  piece  of  wax  impressed  with  the  obligor's  seal 
was  attached,  intention  played  no  part  in  the  determination  of  the 
question;  but  it  will  be  observed  that  the  extensions  of  the  common 
law  result  in  making  the  intention  of  the  obligor  of  vital  importance, 
for  when  almost  anything  may  serve  as  a  seal  whether  or  not  it  is 
in  fact  a  seal  depends  upon  whether  it  was  affixed  or  adopted  as  such, 
that  is,  upon  whether  it  was  intended  to  be  a  seal.^^  If,  however,  a 
Avafer  or  something  appropriate  for  a  seal  was  on  the  paper  at  the 
time  of  execution  or  was  subsequently  attached  thereto  by  the  signer 
in  the  place  customary  for  a  seal  there  is  at  least  prima  facie  proof 
of  the  requisite  intention.'^' 

It  was  early  established  that  the  maker  of  a  deed  need  not  him- 
self attach  the  seal.^^  And  one  seal  may  serve  for  several  persons. 
It  was  formerly  thought  necessary  that  each  should  make  an  impres- 
sion upon  the  seal,^*  but  this  was  ultimately  held  unnecessary.     If, 


kay,  2  Leigh,  488;   Lewis  v.  Overby,  28  Gratt.  627;   Osborn  v.  Kistler,   35 
Ohio  St.  99. 

11  Thus  a  piece  of  ribbon  attached  to  parchment  for  the  purpose  of  keep- 
ing the  wax  of  a  seal  on  the  parchment  was  held  insufficient,  there  being 
no  trace  of  wax  having  actually  been  attached.  But  Cotton,  L.  J.,  said: 
"  It  is  true  that  if  the  finger  be  pressed  on  the  ribbon,  that  may  amount 
to  sealing,  but  no  such  inference  can  be  drawn  here."  National  Provincial 
Bank  v.  Jackson,  33  Ch.  D.  1,  11.  Such  a  ribbon  was  similarly  held  insufficient 
in  Duncan  v.  Duncan,  1  Watts,  322.  Similarly  though  a  scrawl  or  flourish 
may  be  a  seal  in  Pennsylvania,  in  Taylor  v.  Glaser,  2  S.  &  R.  502,  it  was 
held  a  flourish  was  not  a  seal  because  put  under  the  signature,  and  apparently 
intended  merely  as  part  of  it. 

12  In  Langley  v.  Owens,  52  Fla.  302,  309,  310,  42  So.  457,  the  court  said: 
"  It  is  not  contended  that  the  defendant  did  not  in  fact  adopt  and  use  the 
character  or  device  (L.  S.)  as  it  appears  to  the  right  of  his  signature  in  the 
notes,  but  that  he  did  not  adopt  and  intend  it  as  a  seal.  Where  there  is  no 
dispute  as  to  the  character  or  device  u.sed  in  the  execution  of  a  written 
instrument  it  is  for  the  court  to  determine  whether  the  device  as  used  con- 
stitutes a  seal.  See  Beardsley  v.  Knight,  4  Vt.  471 ;  Jacksonville  M.  P.  Ry. 
&  Nav.  Co.  V.  Hooper,  160  U.  S.  514,  16  S.  Ct.  379,  40  L.  Ed.  515. 

"Under  this  statute  [Acts  of  1893,  c.  4148],  a  .scrawl  or  scroll,  affixed 
as  a  seal,  to  the  signature  of  the  maker  of  a  promissory  note  is  as  effectual 
as  a  seal,  and  when  such  scrawl  or  scroll,  printed  or  written,  appears  affixed 
to  the  maker's  signature  in  the  place  usually  occupied  by  the  seal  it  is,  in 
the  absence  of  fraud,  sufficient  to  give  it  effect  as  a  seal.  See  Hudson  v. 
Poindexter,  42  Miss.  304;  Barnard  v.  Gantz,  140  N.  Y.  249,  35  N.  E.  430; 
Hacker's  Appeal,  121  Pa.  St.  192,  15  Atl.  500,  1  L.  R.  A.  861." 

13  Perkins's  Profitable  Book,  §  130,  "  But  it  is  nothing  to  charge,  whether 
it  be  sealed  with  the  seal  of  the  grantor  or  not,  or  by  a  stranger,  or  by  the 
grantor,  if  the  grantor  deliver  the  writing,  &c.  as  his  deed."  See  also  Ankeny 
V.  McMahon,  4  111.  12;  Line  v.  Line,  119  Md.  403,  86  Atl.  1032;  Underwood 
V.  Dollins,  47  Mo.  259;  Osborn  v.  Kistler,  35  Oh.  St.  99;  Lorah  v.  Nissley, 
156  Pa.  329,  27  Atl.  242;  McKain  v.  Miller,  1   McMull,  313. 

11  Shepard's  Touchstone,  57.  "And  if  there  be  twenty  to  seal  one  deed, 
and  they  seal  all  upon  one  piece  of  wax  and  with  one  seal,  yet  if  they  make 
distinct  and  several  prints;  this  is  a  very  sufficient  sealing,  and  the  deed  is 
good  enough." 


SECT.    l]  SEALS  609 

therefore,  an  instrument  signed  by  several  persons  has  seals  opposite 
less  than  all  the  signatures,  it  may,  nevertheless,  be  the  sealed  in- 
strument of  all;  and  if  there  is  a  general  recital  of  sealing,  it  will 
be  presumed  that  those  who  signed  without  affixing  an  individual 
seal  adopted  any  seal  which  was  already  upon  the  instrument  •,^^ 
though  parol  evidence  to  the  contrary  is  admissible/*^  If  the  in- 
strument contains  no  recital  or  other  statement  tending  to  show  that 
all  the  signers  executed  it  under  seal,  it  has  been  held  that"  the  mere 
fact  that  the  signature  to  which  no  seal  is  affixed  follows  a  signature 
which  is  followed  by  a  seal  is  no  evidence  that  the  subsequent  signers 
adopted  the  seal  of  the  prior  signer;  ^^  but  parol  evidence  might 
show  such  adoption.'* 

It  has  been  said  that  if  "  the  first  sign  without  a  seal,  and  the 
others  add  seals  to  their  names,  without  the  direction  or  consent  of 
the  first,  then  he  cannot  be  presumed  to  adopt  their  seals  as  his,  and 
it  continues,  as  to  him,  a  simple  instrument,  as  it  was  when  he  first 
executed  it."  ^^  It  is  to  be  observed,  however,  that  the  question  is 
whether  the  instrument  was  sealed  when  it  was  delivered.  If  the 
first  signer,  therefore,  delivered  the  instrument  or  authorized  its  de- 
livery after  a  seal  had  to  his  knowledge  been  attached  by  subse- 
quent parties,  there  seems  as  much  reason  to  infer  an  adoption  of 
the  seal  from  recitals  in  the  instrument  as  if  tin-  unsealed  signature 
were  the  last  on  the  instrument. 

A  corporation  as  well  as  an  actual  person  ma}^  adopt  as  its  seal 
to  a  document  anything  which  is  capable  of  being  adopted  as  a  seal 
by  a  natural  person,  even  though  the  corporation  have  a  special 
seal  which  it  ordinarily  uses,-" 

It  is  usual  at  the  close  of  a  deed  to  state  that  it  has  been  "  signed, 
sealed  and  delivered,"  or  that  "  in  witness  whereof  the  maker  here- 
unto sets  his  hand  and  seal,"  or  similar  words.  Such  a  recital,  how- 
ever, though  desirable  as  evidence  of  the  signer's  intent,  is  not  essen- 
tial to  the  validity  of  the  instrument   as  a  covenant.     Under  the 

15  Bacon  v.  Green,  36  Fla.  325,  18  So.  870;  Davis  v.  Burton,  4  111.  41.  36 
Am.  Dec.  511;  McLean  v.  Wihon,  4  111.  50;  Rj/an  v.  Cooke,  172  111.  302,  50 
N.  E.  213;  Tasker  v.  Bartlctt,  5  Cush.  359;  Lunxjord  v.  LaMotte  Lead  Co.  54 
Mo.  426;  Burnett  v.  McClucy,  78  Mo.  676,  688;  Pequaiokett  Bridge  v.  Mathes, 
7  N.  H.  230,  26  Am.  Dec.  737;  Bowman  v.  Robb,  6  Pa.  302.  But  .see  contra 
Stabler  v.  Coivman,  7  G.  &  J.  284;  State  v.  Humbird,  54  Md.  327.  which 
held  general  recitals  of  sealing  no  evidence  of  adoption. 

i«  Yarborough  v.  Monday,  3  Dev.  420;  HoIUh  v.  Pond,  7  Humph.  222; 
Lambdcn  v.  Sharp,  9  Humph.  224. 

17  Cooch  V.  Goodman,  2  Q.  B.  580,  598;  //c.s.s's  Estate,  150  Pa.  346,  24 
Atl.  676.  But  see  apparently  contrary  statements  in  Fames  v.  Preston,  20 
111.  389;   Muckleroy  v.  Bethany,  23  Tex.  163. 

18  Ball  V.  Dunsteriille,  4  T.  R.  313;  and  see  cases  cited  in  the  preceding 
two  notes. 

19  Eames  v.  Preston,  20  111.  389;  Rankin  v.  Rohr.  8  Gratt.  63. 

20  G.  V.  B.  Mining  Co.  v.  First  Nat.  Bank,  95  Fed.  23,  33,  36  C.  C.  A. 
633,  and  cases  cited. 


610  SEALS  [chap.   X 

earliest  common-law  view  an  instrument  necessarily  showed  whether 
it  was  sealed  with  the  obligor's  seal,  and  if  such  an  instrument  so 
sealed  were  outstanding,  the  obligor  was  liable.  And  even  after  some 
actual  delivery  by  the  obligor  had  become  necessary^  and  also  after  it 
may  be  supposed  to  have  become  necessary  that  the  seal  should  be 
actually  affixed  or  adopted  by  the  obligor,  it  was  still  true  in  the  main 
that  it  could  be  determined  on  inspection  whether  a  document  was 
sealed  or  not  without  reference  to  any  recitals.  Such  recitals  accord- 
ingly were  held  unnecessai'y.-^ 

In  Virginia  and  a  few  other  States,  however,  a  different  rule  pre- 
vails, and  whether  the  seal  attached  to  the  instrument  is  one  which 
would  have  been  regarded  as  such  by  the  early  common  law  or  not, 
a  recital  that  the  instrument  is  sealed  must  be  made.-- 

Under  the  extension  of  the  common-law  definition  of  what  con- 
stitutes a  seal,  -^  a  distinction  is  taken  in  some  jurisdictions.  It  is 
held  that  to  give  a  scroll  or  similar  modern  substitute  for  a  seal 
the  effect  of  one,  requires  a  recital,  but  that  a  real  or  unmistakable 
seal  is  effectual  without  a  recital.-*     But  no  such  requirement  is 

-1  Anonymous,  1  Dyer,  19  a,  pi.  113;  Goddard's  Case,  2  Coke,  4  b.  5  a; 
Bedow's  Case.  1  Leon.  25;  Peters  v.  Field,  Hetly,  75;  Thompson  v,  Butcher, 
3  Bulstr.  300,  302  (but  see  Clement  v.  Gunhouse,  5  Esp.  83) ;  Burton  v.  LeRoy, 
5  Sawy.  510;  Jeffery  v.  Underwood,  1  Ark.  108;  Bertrand  v.  Byrd,  4  Ark  195; 
Cummins  v.  Woodruff,  5  Ark.  116;  Conine  v.  Junction,  etc.,  R.,  Co.,  3  Houst. 
288;  Fames  v.  Preston,  20  111.  389;  Jackson  v.  Security  Mutual  Life  Ins.  Co., 
233  111.  161,  84  N.  E.  198;  Hubbard  v.  Beckmth,  1  Bibb.,  492;  Wing  v.  Chase, 
35  Me.  260;  Trasher  v.  Everhart,  3  G.  &  J.  234,  246;  Mill  Dam  Foundry 
V.  Hovey,  21  Pick.  417,  428;  Brown  v.  Jordhal,  32  Minn.  135,  19  N.  W.  650; 
Stioknoth's  Estate,  7  Nev.  223,  234;  Ingram  v.  Hall,  1  Hayw.  193,  209; 
Osbom  V.  Kistler,  35  Ohio  St.  99 ;  Osborne  v.  Hubbard,  20  Oreg.  318,  25  Pac. 
1021,  11  L.  R.  A.  833;  Taylor  v.  Glaser,  2  S.  &  R.  502;  Prevail  v.  Fitch,  5 
Whart..  325,  34  Ann.  Dec.  558;  Biery  v.  Haines,  5  Whart.  563;  Hopkins  v. 
Cumberland  R.  Co.,  3  W  &  S.  410;  Lorah  v.  Nissley,  156  Pa.  329,  27  Atl.  242; 
Relph  v.  Gist.  4  McCord,  267;  McKain  v.  Miller,  1  McMuU.  313;  Scruggs 
v.  Brackin,  4  Yerg.  528.  See  also  McRauen  v.  McGuire,  17  Miss.  34;  Hudson 
v.  Poindexter,  42   Miss.  304. 

2  2  Bradley  Salt  Co.  v.  Norfolk  Importing  Co.,  95  Va.  461,  28  S.  E.  567. 
Also  Lee  v.  Adkins,  Minor,  187;  Carter  v.  Penn,  4  Ala.  140;  Moore  v.  Lcseur, 
18  Ala.  606;  Blackwell  v.  Hamilton,  47  Ala.  470;  Breitling  v.  Marx,  123 
Ala.  222,  26  So.  203;  McDonald  v.  Bear  River,  etc.,  Mining  Co.,  13  Cal.  220; 
Echoh  V.  Phillips,  112  Ga.  700,  37  S.  E.  977;  Barnes  v.  Walker,  115  Ga.  108, 
41  S.  E.  243;  Boharmon  v.  Hough,  1  Miss.  461  (but  see  McRaven  v.  McGuire, 
17  Miss.  34) ;  Austins  Adm.  v.  Whitlock's  Ex'rs.  1  Munf.  487,  4  Am.  Dec. 
550;  Keller's  Adm'r  v.  McHufjman,  15  W.  Va.  64,  85.  See  also  Buckingham 
v.  Orr,  6  Col.  587. 

2  3  See  supra,  §  207. 

^*  Alt  v.  Stoker,  127  Mo.  466,  30  S.  W.  132,  and  cases  cited;  Winter  v. 
Kansas  City  Ry.  Co.,  160  Mo.  159,  61  S.  W.  606 ;  Newbold  v.  Lamb,  2  South. 
(N.  J.)  449;  Corlies  v.  Van  Note,  1  Harr.  (N.  J.)  324;  Flemming  v.  Powell, 
2  Tex.  225  (compare  English  v.  Helms,  4  Tex.  228;  Muckelroy  v.  Bethany,  23 
Tex.  163).  See  also  Brown  v.  Jordhal.,  32  Minn.  135.  19  N.  W.  650,  50  Am. 
Rep.  560;  Merritt  v.  Cornell,  1  E.  D.  Smith,  335;  Osborne  v.  Hubbard,  20 
Oreg.  318,  25  Pac.  1021.  In  Missouri  and  Texas  seals  are  now  abolished 
altogether.    See  infra,  §  218.    In  some  jurisdictions  at  least  the  mere  presence 


SECT.    I]  SEALS  611 

generally  made.-^  It  seems,  therefore,  that  in  most  jurisdictions 
whether  an  instrument  is  under  seal  or  not  must  frequently  be  open 
to  determination  by  extrinsic  parol  evidence  of  the  intention  with 
which  some  scroll  or  dash  was  affixed  to  the  signature  of  the  maker.-* 
Though  if  statements  or  recitals  are  made  in  an  instrument  to  which 
is  affixed  something  capable  of  being  a  seal  if  intended  as  such,  that 
it  is  sealed,  such  statements  are  doubtless  e\ndence  and  perhaps  con- 
clusive evidence  of  the  obligor's  intent.-^ 

of  a  seal  is  not  sufficient  evidence  that  the  instrument  is  sealed.  There  must 
be  either  a  recital  or  extrinsic  evidence  of  sealing  by  the  obligor.  In  re  Pirie, 
198  N.  Y.  209,  91  X.  E.  587;  Taylor  v.  Glaser,  2  Serg.  &  R.  502;  Smith  v. 
Henning,  10  W.  Va.  596,  631,  cj.  Jackson  v.  Security  L.  Ins.  Co.,  233  111.  161, 
84  N.  E.  198. 

25  See  cases  cited,  supra,  p.  610  n  . 

26  It  is  indeed  said  in  Jacksonville,  etc.,  Nav.  Co.  v.  Hooper,  160  U.  S. 
514.  519,  40  L.  Ed.  515,  16  S.  Ct.  379,  "  Whether  an  instrument  is  under 
seal  or  not  is  a  question  for  the  court  upon  inspection;  whether  a  mark  or 
character  shall  be  held  to  be  a  seal  depends  upon  the  intention  of  the  execu- 
tant, as  shown  bv  the  paper"  citing  Hackers  Appeal,  121  Penn.  St.  192,  15 
At.l.  500,  1  L.  R.  "a.  861 ;  Pillow  v.  Roberts,  13  How.  472,  474,  14  L.  Ed.  228. 
But  it  is  hard  to  see,  if  recitals  are  unnecessaiy,  and  anything  may  serve 
for  a  seal  which  is  so  intended,  how  "  the  intention  of  the  executant,  as  shown 
by  the  paper  "  can  be  decisive.  Non  constat  that  any  intention  appears  from 
the  paper.  In  Jeffery  v.  Underwood,  1  Ark.  108,  111,  the  court  said:  "The 
scrawl  must  appear  on  the  face  of  the  instrument ;  the  proof  that  it  was  placed 
there  by  way  of  seal  may  be  by  evidence  dehors  the  instrument."  In  National 
Provincial  Bank  v.  Jackson,  33  Ch.  D.  1,  11,  the  court  referred  as  important, 
to  evidence  of  an  attesting  witness  as  to  whether  the  finger  of  the  maker 
was  pressed  upon  the  ribbon  attached  to  the  document,  or  anything  of  the 
sort.     And  see  cases  at  the  end  of  the  preceding  note. 

27  In  Metropolitan  Life  Ins.  Co.  v.  McCoy,  124  N.  Y.  47,  26  N.  E.  345, 
11  L.  R.  A.  708,  a  penal  bond  was  signed  which  recited  that  it  was  sealed, 
but  which  in  fact  was  not  sealed  at  the  time  when  one  of  the  obligors  signed 
it,  seals  being  afterwards  affixed  by  the  other  obligor.  It  was  held  that  the 
first  obligor  was  estopped  to  deny  the  validity  of  the  sealing.  In  State  v. 
Humbird,  54  Md.  327,  and  Taylor  v.  Gla.-iPr,  2  S.  &  R.  502,  it  was  held  that 
a  recital  of  sealing  does  not  estop  the  maker  of  a  penal  bond  delivered  with- 
out seals  from,  denying  that  it  is  sealed.  See  also  Hudson  v.  Webber,  104 
Me.  429,  72  Atl.  IM.  In  Barnet  v.  Abbot,  53  Vt.  120,  it  was  held  that  a 
recital  in  a  bond  that  it  was  sealed  is  evidence  that  it  was  sealed  when  de- 
livered but  not  conclusive  proof.  See  further  as  to  the  general  conclusiveness 
of  recitals,  supra,  §  115.  In  Broivn  v.  Jordhal,  32  Minn.  135,  19  N.  W.  650,  50 
Am.  Rop.  560,  the  court  said:  "Such  words  in  the  testimonium  clause  as 
'  witness  my  hand  and  seal.'  or  '  sealed  with  my  seal,'  would  establish  that 
the  scroll  or  device  was  used  as  a  seal.  ...  It  would  be  difficult  to  conceive 
how  the  party  could  express  that  the  device  was  intended  for  a  seal  more 
clearly  than  by  the  word  '  seal  '  placed  within  and  made  a  part  of  it."  To  the 
same  effect  is  Osborne  v.  Hubbard,  20  Oreg.  318.  25  Pac.  1021.  In  Whittiugton 
V.  Clarke,  16  Miss.  480.  485.  Thatcher.  J.,  said,  "  Whenever  it  is  manifest 
that  a  scroll  is  intended  to  be  used  *  by  way  of  seal.'  it  must  have  that 
effect,  whether  it  appears  from  the  boilv  of  the  instrument,  or  from  the  scroll 
itself." 


612  whyddon's  case  [chap,  x 

SECTION  II 

DELIVERY 

WHYDDOX'S    CASE 

Cro.  Eliz.  520.     1596. 

Annvity.  The  defendant  saitli,  that  he  delivered  the  deed  of  an- 
nuity to  the  plaintiff  as  an  escrow,  to  be  his  deed  upon  a  certain 
condition  to  be  performed,  otherwise  not :  and  that  the  condition  was 
not  yet  performed.  The  plaintiff  demurred ;  and,  without  argument, 
adjudged  for  the  plaintiff :  for  the  delivery  of  a  deed  cannot  be 
averred  to  be  to  the  party  himself  as  an  escrow.  Vide  19  Hen.  8, 
pi.  8 ;  29  Hen.  8 ;  and  Morice's  Case,  Dyer,  23  b,  25  a,  in  margin.^ 

1  Whitney  v.  Dewey,  10  Idalio  633;  Ryan  v.  Cooke,  172  111.  302;  City 
Bank  v.  Anderson,  189  Ky.  487;  Reed  v.  Reed,  117  Me.  281;  Braman  v.  Bing- 
ham, 26  N.  Y.  483;  Hamlin  v.  Hamlin,  192  N.  Y.  164;  Weisenberger  v.  Hueb- 
ner,  264  Pa.  316;  Gafjney  v.  Stowers,  73  W.  Ya.  420;  Williarjis  v.  Green, 
Cro.  El.  884;  s.  c.  Moore  642;  Thoroughgood's  Case,  9  Co.  136  b;  Bushell 
v.  Pasmore,  6  Mod.  217,  218,  accord. 

Contra.     Lee  v.  Richmond,  90  Iowa  695. 

Compai-e  Stanley  v.  White,  160  111.  605;  Sample  v.  Greathard,  281  111. 
79;  Mitchell  v.  Clem,  295  111.  150;  Troupe  v.  Hunter,  133  N.  E.  (111.)  56; 
Bremyer  v.  School  Ass'n,  86  Kan.  644;  Fairbanks  v.  Metcalj,  8  Mass.  230; 
Bleidtt  v.  Boorum,  142  N.  Y.  357;  Gaylord  v.  Gaylord,  150  N.  C.  222;  Whit- 
aker  v.  Lane,  128  Va.  317;  Curry  v.  Colburn,  99  Wis.  319;  Zoerb  v.  Paetz, 
137  Wis.  59;  Hawksland  v.  Gatchel,  Cro.  El.  835;  Murray  v.  Stair,  2  B.  & 
C.  82;  Hudson  v.  Revett,  5  Bing.  368.  388. 

Authorities  are  collected  in  16  L.  R.  A.  n.  s.  941  note;  5  Minn.  L.  Rev. 
287;  Williston,  Contracts.  §  212. 

In  London  Freehold  Co.  v.  Baron  Suffield,  [1897]  2  Ch.  (C.  A.)  608,  one 
Wynne  was  solicitor  of  the  plaintiff  Company  and  was  also  one  of  four  trustees 
under  a  settlement.  A  mortgage  by  the  plaintiff  Company  to  the  trustees 
w^as  signed  and  sealed  and  placed  in  the  hands  of  W3'nne.  The  Company 
urged  that  the  delivery  was  in  escrow,  but  the  court  found  otherwise.  In 
disposing  of  this  point  the  court  said,  p.  621 :  "  We  are  not  prepared  to  go 
so  far  as  to  say  that,  as  Wynne  was  himself  one  of  the  mortgagees  and  a 
party  to  the  deed,  it  could  not  in  point  of  law  be  an  escrow  in  his  hands. 
Counsel  for  the  defendants  contended  that  the  mere  fact  that  Wynne  was 
himself  one  of  the  mortgagees  was  fatal  to  the  deed  being  an  escrow.  They 
contended  that  to  be  an  escrow  the  deed  must  be  delivered  to  some  person 
not  a  party  taking  under  it;  in  short,  to  a  stranger.  In  support  of  this  con- 
tention reliance  was  placed  on  Co.  Litt.  36  a;  Sheppard's  Touchstone,  7th  ed. 
pp.  58,  59;  and  Whyddon's  Case,  Cro.  Eliz.  520.  No  doubt  the  language  used 
in  the  authorities  referred  to  and  reproduced  in  other  works  on  real  property 
and  conveyancing  is  in  favour  of  this  contention.  But  the  language  is  veiy 
general,  and  we  are  not  at  all  satisfied  that  the  law  is  so  rigid  as  to  compel 
the  Court  to  decide  that  where  there  are  several  grantees  and  one  of  them 
is  also  solicitor  of  the  grantor  and  of  the  other  grantees,  and  the  deed  is  de- 
livered to  him.  evidence  is  not  admissible  to  shew  the  character  in  which  and 
the  terms  upon  which  the  deed  was  so  delivered.  To  exclude  such  evidence 
appears  to  us  unreasonable;  and  we  do  not  think  we  are  compelled  by  author- 


SECT.    II ]  DELIVERY  613 

Co.  Lit.  36  a.  If  a  man  deliver  a  writing  sealed,  to  the  party  to 
whom  it  is  made,  as  an  escrow  to  be  his  deed  upon  certain  conditions, 
(fcc,  this  is  an  absolute  delivery  of  the  deed,  being  made  to  the  party 
himself,  for  the  delivery  is  sufficient  without  speaking  of  any  words 
(otherwise  a  man  that  is  mute  could  not  deliver  a  deed),  and  tradi- 
tion is  only  requisite,  and  then  when  the  words  are  contrary  to  the 
act  which  is  the  delivery,  the  words  arc  of  none  effect,  non  quod 
dictum  est,  sed  quod  factum  est  inspicitur.  And  hereof  though  there 
hath  been  variety  of  opinions,  yet  is  the  law  now  settled  agreeable  to 
judgments  in  former  times,  and  so  was  it.  resolved  by  the  whole 
Court  of  Common  Pleas.  But  it  may  be  delivered  to  a  stranger,  as 
an  escrow,  kc,  because  the  bare  act  of  delivery  to  him  without  words 
worketh  nothing.  And  this  is  the  ancient  diversity  in  our  books, 
the  record  whereof  I  have  seen  agreeable  with  the  reason  of  our  old 
books.  And  as  a  deed  may  be  delivered  to  the  party  without  words, 
so  may  a  deed  be  delivered  by  words  without  any  act  of  delivery, 
as  if  the  writing  sealed  lietli  upon  the  table,  and  the  feoffor  or 
obligor  saith  to  the  feoffee  or  obligee.  Go  and  take  up  the  said  writ- 
ing, it  is  sufficient  for  you,  or  it  will  serve  the  turn  :  or,  Take  it  as 
my  deed,  or  the  like  words,  it  is  a  sufficient  delivery. 

Shep.  Touch.,  58,  59.  The  delivery  of  a  deed  as  an  escrow  is  said 
to  be  where  one  doth  make  and  seal  a  deed,  and  deliver  it  unto  a 
stranger  until  certain  conditions  be  performed,  and  then  to  be  de- 
livered to  him  to  whom  the  deed  is  made,  to  take  effect  as  his  deed. 
And  so  a  man  may  deliver  a  deed,  and  such  a  delivery  is  good.  But 
in  this  case  two  cautions  must  be  heeded.  1.  That  the  form  of  words 
used  in  the  delivery  of  a  deed  in  this  manner  be  apt  and  proper.  2. 
That  the  deed  be  delivered  to  one  that  is  a  stranger  to  it,  and  not 
to  the  party  himself  to  whom  it  is  made.  —  The  words  therefore  that 
are  used  in  the  delivery  must  be  after  this  manner :  I  deliver  this  to 
you  as  an  escrow,  to  deliver  to  the  party  as  my  deed,  upon  condition 
that  he  do  deliver  to  you  £20  for  me,  or  upon  condition  that  he  de- 
liver up  the  old  bond  he  hath  of  mine  for  the  same  money,  or  as  the 
case  is.  Or  else  it  must  be  thus :  I  deliver  this  as  an  escrow  to  you, 
to  keep  until  such  a  day,  &c.  upon  condition  that  if  before  that  day 
he  to  whom  the  escrow  is  made  shall  pay  to  me  £10,  or  give  to  me 


ity  to  exclude)  it.  We  hold  such  evidence  to  be  admissible,  and  in  so  doing 
we  believe  we  are  acting  in  accordance  with  modem  authorities,  beginning 
with  Murray  v.  Earl  nf  Stair,  2  B.  Sc  C.  82,  and  ending  with  Watkins  v.  Na.'ih, 
L.  R.  20  Eq.  262.  Upon  the  evidence,  however,  to  which  we  have  already 
referred,  we  come  to  the  conclusion  that  the  mortgage  was  executed  as  a 
complete  deed." 

Cases  on  conditional  delivery  to  agent  of  grantee.  A.fhford  v.  Premtt,  102 
Ala.  264;  Alabama  Coke  &  Coal  Co.  v.  Gulf  Coke  d-  Coal  Co.,  165  Ala. 
304;  Roach  v.  A.  D.  Malone  Co.,  135  Ark.  69;  Bond  v.  Wihon,  129  N.  C. 
325;  Cincinnati  Rd.  Co.  v.  lliff,  13  Ohio  St.  235;  Watkins  v.  Nash,  L.  R. 
20  Eq.  262. 


614  DELIVERY  [chap.    X 

a  horse,  or  enfeoff  me  of  the  manor  of  Dale,  or  perform  any  other 
condition ;  that  then  you  shall  deliver  this  escrow  to  him  as  my  deed. 
For  if  when  I  shall  deliver  the  deed  to  the  stranger,  I  shall  use  these 
or  the  like  words;  I  deliver  this  to  you  as  my  deed,  and  that  you 
shall  deliver  it  to  the  party  upon  certain  conditions;  or,  I  deliver 
this  to  you  as  my  deed  to  deliver  to  him  to  whom  it  is  made  when 
he  comes  to  London;  in  these  cases  the  deed  doth  take  effect  preo- 
ently,  and  the  party  is  not  bound  to  perform  any  of  the  conditions.^ 
So  it  must  be  delivered  to  a  stranger;  for  if  I  seal  my  deed  and  de- 
liver it  to  the  party  himself  to  whom  it  is  made  as  an  escrow  upon 
certain  conditions,  &c.  in  this  case  let  the  form  of  the  words  be  what 
it  will,  the  delivery  is  absolute,  and  the  deed  shall  take  effect  as  his 
deed  presently,  and  the  party  is  not  bound  to  perform  the  conditions ; 
for.  In  traditionihiis  chartarum,  non  quod  dictum,  sed  quod  factum 
est,  inspicitur.  But  in  the  first  cases  before,  where  the  deed  is  de- 
livered to  a  stranger,  and  apt  words  are  used  in  the  delivery  thereof,  it 
is  of  no  more  force  until  the  conditions  be  performed,  than  if  I  had 
made  it,  and  laid  it  by  me,  and  not  delivered  it  at  all;  and  therefore 
in  that  case  albeit  the  party  get  it  into  his  hands  before  the  conditions 
be  performed,  yet  he  can  make  no  use  of  it  at  all,  neither  will  it  do 
him  any  good.  But  when  the  conditions  are  performed,  and  the  deed 
is  delivered  over,-  then  the  deed  shall  take  as  much  effect  as  if  it 
were  delivered  immediately  to  the  party  to  whom  it  is  made,  and  no 
act  of  God  or  man  can  hinder  or  prevent  this  effect  then,  if  the 
party  that  doth  make  it  be  not  at  the  time  of  making  thereof  disabled 
to  make  it.  He  therefore,  that  is  trusted  with  the  keeping  and  de- 
livering of  such  a  writing,  ought  not  to  deliver  it  before  the  con- 
ditions be  performed;  and  when  the  conditions  be  performed,  he 
ought  not  to  keep  it,  but  to  deliver  it  to  the  party.  For  it  may  be 
made  a  question,  whether  the  deed  be  perfect,  before  he  hath  de- 
livered it  over  to  the  party  according  to  the  authority  given  him. 
Howbeit  it  seems  the  delivery  is  good,  for  it  is  said  in  this  case,  that 
if  either  of  the  parties  to  the  deed  die  before  the  conditions  be  per- 
formed, and  the  conditions  be  after  performed,  that  the  deed  is 
good;  for  there  was  traditio  inchoata  in  the  life-time  of  the  parties; 
et  postea  consummata  existens  by  the  performance  of  the  conditio'ns, 
it  taketh  its  effect  by  the  first  delivery,  without  any  new  or  second 
delivery;  and  the  second  delivery  is  but  the  execution  and  consumma- 
tion of  the  first  delivery.  And  therefore  if  an  infant,  or  woman 
covert,  deliver  a  deed  as  an  escrow  to  a  stranger,  and  before  the  con- 
ditons  are  performed,  the  infant  is  become  of  full  age,  or  the  woman 

1  But  see  State  Bank  v.  Evans,  3  Green  (N.  J.  L.)   155. 

2  See  Bradbury  v.  Davenport,  120  Cal.  152;  Hughes  v.  Thistlewood,  40 
Kan.  232;  Regan  v.  Howe,  121  Mass.  424;  Francis  v.  Francis,  143  Mich.  300; 
Craddock  v.  Barnes,  142  N.  C.  89;  Farley  v.  Palmer,  20  Ohio  St.  223;  Pruts- 
man  v.  Baker,  30  Wis.  644,  649.  Compare  Tombler  v.  Sumpter,  97  Ark.  480; 
Guild  v.  Althouse,  71  Kan.  604;  Knopf  v.  Hansen,  37  Minn.  215;  Hooper  v. 
Ramsbottom,  6  Taunt.  12. 


SECT.    II  ]  CHAUDOIR    V.   WITT  615 

is  become  sole,  yet  the  deed  in  these  cases  is  not  become  good.  And 
yet  if  a  disseisee  make  a  deed  purporting  a  lease  for  years,  and  de- 
liver it  to  a  stranger  out  of  the  land  as  an  escrow,  and  bid  him  enter 
into  the  land,  and  deliver  it  as  his  deed,  and  he  do  so,  this  is  a  good 
deed,  and  a  good  lease,  so  that  to  some  purposes  it  hath  relation  to 
the  time  of  the  first  delivery,  and  to  some  purposes  not. 


CHAUDOIR  V.  WITT  a>d  Others 
170  Wis.  556,  562.     1920. 

WiNSLOw,  C.  J.^  The  reargument  has  convinced  us  that  we  were 
in  error  in  reversing  the  judgment  in  this  case,  and  the  former 
opinion  must  be  considered  as  withdrawn  and  the  judgment  of  re- 
versal set  aside. 

The  trial  court's  findings  were  that  both  deeds  Avere  delivered 
with  the  intention  of  conveying  the  property,  but  this  court  held 
that  these  findings  were  contrary  to  the  clear  preponderance  of  the 
evidence  and  that  the  evidence  demonstrated  that  the  deeds  were 
understood  by  all  parties  to  be  testamentary  documents  only  and 
were  never  delivered  with  intent  that  they  should  take  effect  as 
deeds.  We  now  think  that  this  was  an  erroneous  holding.  The  only 
direct  testimony  as  to  what  was  done  with  the  deeds  after  their  ex- 
ecution was  the  testimony  of  Frank  Suelflow,  the  real-estate  man, 
the  grantee  named  in  the  first  deed.  He  testified  directly  that  Mr. 
Witt  executed  the  first  deed  running  to  him  (Suelflow)  and  gave  it 
to  him,  and  that  he  then  had  another  deed  made  out  signed  and 
executed  by  himself  and  wife,  and  that  he  (Suelflow)  gave  both 
deeds  to  Mrs.  Witt  for  the  purpose  of  conveying  the  property  to 
her.  No  witness  details  the  conversation  which  occurred  on  either 
occasion,  but  Suelflow  says,  and  in  this  testimony  is  sustained  by 
Damkoehler,  that  Witt  wanted  to  deed  his  property  to  his  wife  be- 
cause he  was  sick  and  he  might  die,  and  in  case  he  died  the  properry 
would  be  assigned  to  his  wife,  and  that  the  deeds  were  not  to  be 
recorded  until  after  his  death.  The  appellant's  proposition  is  in 
brief  that  this  evidence  last  referred  to  overcomes  the  inference 
of  delivery  naturally'  to  be  drawn  from  the  manual  tradition  of 
the  deeds. 

Mature  consideration  convinces  us  to  the  contrary.  The  con- 
clusion rather  is  that  the  deeds  were  intended  to  be  legally  effective 
at  once  (in  the  sense  of  not  being  subject  to  revocation),  but  were 
expected  not  to  pass  the  title  until  the  happening  of  an  outside 
event,  namely,  the  death  of  the  grantor;  in  other  words,  the  grants 
were  upon  condition. 

1  The  proceedings  prior  to  the  opinion  on  rehearing  arc  omitted. 


616  CHAUDOIR    V.    WITT  [CHAP.   X 

No  court  has  more  positively  or  consistently  held  that  there 
cannot  be  a  conditional  delivery  of  a  deed  to  the  grantee  himself  than 
this  court.  In  Hinchliff  v.  Hinman,  18  Wis.  130,  it  was  held  that 
if  a  deed  is  executed  and  delivered  with  intent  to  pass  the  estate  to 
the  grantee  it  must  so  operate  though  both  parties  supposed  that  it 
would  not  take  effect  until  recorded  and  also  supposed  that  while 
unrecorded  the  grantor  might  control  or  revoke  it.  In  Lowher  v. 
Connit,  36  Wis.  176,  it  was  said  that  if  a  grantor  of  land  does  not 
intend  his  deed  to  take  effect  "until  some  condition  is  performed  he 
must  keep  it  to  himself  or  leave  it  in  escrow  with  a  stranger  and  not 
deliver  it  to  the  grantee.  In  Prutsman  v.  Baker,  30  Wis.  644,  the 
subject  of  conditional  delivery  of  a  deed  was  discussed  by  Chief 
Justice  Dixon,  who  said :  "A  conditional  delivery  is  and  can  only 
be  made  by  placing  the  deed  in  the  hands  of  a  third  person,  to  be 
kept  by  him  until  the  performance  of  some  condition  or  conditions 
by  the  grantee  or  some  one  else,  or  until  the  happening  of  some 
event "  when  it  is  to  be  delivered  by  the  depositary  to  the  grantee. 
These  cases  were  followed  in  Rogers  v.  Rogers,  53  Wis.  36,  10  N. 
W.  2,  in  which  it  was  held  that  if  a  grantor  did  not  wish  his  deed 
to  go  into  effect  at  once  he  should  keep  it  himself  or  place  it  in 
the  hands  of  a  stranger  and  not  deliver  it  to  the  grantee.  And 
these  cases  are  in  accord  with  the  general  current  of  authority  to 
the  effect  that  a  delivery  in  escroAV  or  upon  conditions  cannot  be 
made  to  the  grantee  himself,  and  that  such  a  delivery  at  once  be- 
comes absolute  and  the  supposed  conditions  are  of  no  effect.  18 
Corp.  Jur.  p.  211;  16  Cyc.  571;  1  Warvelle,  Vendors,  p.  517; 
Worrall  v.  Munn,  5  N.  Y.  229 ;  Braman  v.  Bingham,  26  N.  Y.  483 ; 
Wallace  v.  Berdell,  97  N".  Y.  13;  Bleivitt  v.  Boorem,  142  N.  Y. 
357,  37  :N'.  E.  119;  Hamlin  v.  Eamlin,  192  N.  Y.  164,  84  N.  E'. 
805;  Hovey  v.  Ho^ey,  170  N.  Y.  Supp.  822,  affirmed  183  App. 
Div.  184;  Beers  v.  Beers,  22  Mich.  42;  Wipfler  v.  Wipfler,  153  Mich. 
18,  116  N.  W.  544;  Fairhanhs  v.  Metcalf,  8  Mass.  230;  Fletcher  v. 
Shepherd,  174  111.  262,  51  K  E.  212;  Blake  v.  Ogden,  223  111. 
204,  79  K  E.  68. 

The  reason  of  the  rule  is  quite  obvious.  If  it  were  possible  to 
prove  in  every  case  that  parol  conditions  were  attached  to  the 
formal  delivery  of  a  deed  there  would  be  no  safety  in  accepting  a 
deed.  Titles  would  be  open  to  attack  at  all  times,  and  the  prac- 
tical result  Avould  be  to  defeat  the  solemn  provisions  of  a  duly  ex- 
ecuted and  formally  delivered  deed  by  parol  testimony.  There 
were  circumstances  in  the  present  case  tending  quite  persuasively 
to  show  that  both  Mr.  and  Mrs.  Witt  supposed  that  the  title  remained 
in  Mr.  Witt  during  his  life,  but  of  course  their  erroneous  impression 
as  to  the  legal  effect  of  the  transaction  could  not  control  that  effect. 
If  the  law  is,  as  we  now  hold,  that  such  conditional  delivery  made 
to  the  grantee  at  once  becomes  an  absolute  delivery  freed  of  the 
supposed   conditions,   then   the  controversy  here   is   closed,   because 


SECT.    Il]  DOE   d.    GARNONS    V.    KNIGHT  617 

the  title  at  once  passed  in  spite  of  the  idea  of  the  parties  that  it  was 
not  to  i)ass  until  after  Mr.  Witt's  death. 

There  are  authorities  justifying  more  or  less  satisfactorily  our 
former  holding,  some  of  which  will  be  found  cited  in  the  former 
opinion.  It  will  be  found,  however,  on  close  examination  of  most 
of  these  cases  that  they  are  cases  where,  although  the  grantee  had 
manual  possession  of  the  deed,  it  affirmatively  appeared  that  the 
grantor  retained  control  over  it.  Conceding  in  the  present  case  that 
there  is  some  testimony  tending  to  show  that  the  grantor  expected 
to  retain  control  over  the  deeds,  it  certainly  cannot  be  said  to  be 
sufficient  to  overturn  the  findings  of  the  trial  court  that  the  deeds 
were  delivered  with  intent  to  convey  the  property.  These  findines 
are  founded  on  sufficient  affirmative  evidence,  are  not  against  the 
clear  preponderance  of  the  evidence,  and  hence  must  stand. 

By  the  Court.  Judgment  affirmed. 

SiEBECKER  and  ViN.TE,  JJ.,  disscut. 

A  motion  by  appellant  for  a  r('hearing  and  for  a  modification 
of  the  mandate  as  to  costs,  made  December  31,  1919,  was  denied, 
with  $25  costs,  on  February  10,  1920.^ 


DOE  d.  GAKNONS  V.  KNIGHT 
5  B.  &  C.  671.    1826. 

This  was  an  ejectment  brought  to  recover  possession  of  certain 
messuages  and  lands  in  the  County  of  Flint.  The  lessor  of  the  plain- 
tiff claimed  the  property  as  mortgagee  under  a  deed  purporting  to 
be  executed  by  W.  Wynne,  deceased.  At  the  trial  before  Garroiv,  B., 
at  the  Summer  Assizes  for  the  County  of  Stafford,  1825,  the  prin- 
cipal question  turned  on  the  validity  of  that  deed;  and  the  following 
appeared  to  be  the  facts  of  the  case :  Wynne  was  an  attorney  resid- 
ing at  Mold  in  Flintshire,  and  had  acted  in  that  character  for 
Garnons,  the  lessor  of  the  ])laintift',  who  resided  at  a  distance  of  about 
three  miles  from  Mold.  Wynne's  sister  and  niece  lived  in  a  house 
adjoining  to  his  own  at  Mold.  On  the  12th  of  April,  1820,  about 
six  o'clock  in  the  evening,  Wynne  called  at  his  sister's  house,  his 
niece  then  being  the  only  person  at  home,  and  asked  her  to  witness 
or  sign  some  parchment.  He  produced  the  parchment,  placed  it  on 
the  table,  signed  his  name,  and  then  said,  ''  I  deliver  this  as  my  act 
and  deed,"  putting  his  finger  at  the  same  time  on  the  seal;  the  niece 
signed  her  name,  and  he  took  it  away  Avitli  him.     The  deed  remained 

1  Mowry  v.  Hency,  86  Cal.  471;  Hammond  v.  MvCollouqh,  159  Cal.  639; 
Bias  V.  Rccd,  169  Cal.  33;  Baker  v.  Baker,  159  111.  394;  Wiplcr  v.  Wipler, 
153  Mich.  18,  accord. 

But  compare  Kcnncy  v.  Park^,  125  Cal.  146;  Cox  v.  Schnerr,  172  Cal. 
371;  FAlioli  v.  Murray,  225  111.  107;  Tricksbury  v.  Tewksbury,  222  Mass. 
595;  Smith  v.  Thayer,  125  N.  E.  (Mass.)  171. 


618  DOE    d.    GARNONS    V.    KNIGHT  [CHAP.    X 

on  the  table  until  he  took  it  away.  He  did  not  mention  to  his  niece 
the  contents  of  the  deed,  or  the  name  of  Mr.  Garnons.  The  niece 
had  no  authority  from  Mr.  Garnons  to  receive  anything  for  him. 
It  was  proved  by  Miss  Elizabeth  Wynne,  the  sister  of  Wynne,  that 
in  April,  1820  (but  whether  before  or  after  the  execution  of  the 
deed  as  above  mentioned  did  not  distinctly  appear),  he  brought  her 
a  brown  paper  parcel,  and  said,  "  Here,  Bess,  keep  this :  it  belongs  to 
Mr.  Garnons."  Nothing  further  passed  at  this  time ;  but  a  few  days 
after  he  came  again,  and  asked  for  the  parcel,  and  she  gave  it  to 
him:  he  returned  it  back  to  her  again  on  the  14th,  15th,  or  16th  of 
April,  saying,  "  Here,  put  this  by."  When  she  received  it  the 
second  time,  it  was  less  in  bulk  than  before.  Wynne  died  in  August, 
1820.  After  his  funeral,  she  delivered  this  parcel  to  one  Barker  in 
the  same  state  in  which  she  received  it  from  her  brother.  Barker, 
who  was  an  intimate  friend  of  Wynne,  stated,  that  the  latter  in 
July,  1814,  sent  for  him,  and  told  him  that  he  had  received  upwards 
of  £26,000  upon  Mr.  Garnons'  account;  and  after  taking  credit  for 
sums  he  had  paid,  and  placed  out  for  Mr.  Garnons,  he  was  still  in- 
debted to  him  in  more  than  £13,000.  He  then  asked  the  witness, 
if  he,  as  his  (Wynne's)  friend,  would  see  Mr.  Garnons  to  explain  the 
circumstances.  The  witness  consented,  and  Wynne  then  made  a 
statement  of  his  property,  by  which  it  appeared  that  after  payment 
of  his  debts,  including  the  £13,000,  he  would  have  a  surplus  for  him- 
self and  family  of  £8,000  at  the  least.  He  desired  the  witness  to 
tell  Garnons  that,  although  he  could  not  pay  him  at  that  time,  he 
would  taJce  care  to  make  him  perfectly  secure  for  all  the  moneys  due 
from  him.  Upon  this  being  communicated  to  Garnons  he  desired 
Barker  to  assure  Wynne,  that  he  would  not  then  distress  him,  or  ex- 
pose his  circumstances,  but  he  expected  that  he  would  provide  him 
securities  for  the  money  he,  Wynne,  owed  him.  This  was  com- 
municated to  Wynne,  who  expressed  great  gratitude  to  Garnons,  and 
said  he  wovild  take  care  to  make  him  perfectly  secure.  After  the 
funeral  of  Wynne,  his  will  was  produced,  and  with  it  was  a  paper 
in  his  own  handwriting,  containing  a  statement  of  his  property,  and 
a  list  of  various  debts  secured  by  mortgage  or  bond,  and  among 
others,  under  the  title  "  mortgage/'  there  was  stated  to  be  a  debt 
to  Mr.  Garnons  for  £10,000.  Miss  Wynne  soon  after  delivered  to 
the  witness,  Barker,  a  brown  paper  parcel  sealed,  but  not  directed. 
Upon  this  being  opened,  there  was  enclosed  in  it  another  white  paper 
parcel,  directed,  in  the  handwriting  of  Wynne,  "  Eichard  Garnons, 
Esq."  Within  it  was  a  mortgage  deed  (the  same  that  was  witnessed 
by  Wynne's  niece,  as  before  stated),  from  Wynne  to  Garnons  for 
£10,000.  There  was  also  within  the  white  parcel,  a  paper  folded  in 
the  form  of  a  letter  directed  in  the  handwriting  of  Wynne  to  Mr. 
Garnons.  That  contained  a  statement  of  the  account  between  Wynne 
and  Garnons,  and  £10,000;  part  of  the  balance  due  from  Wynne  to 
Garnons,  was  stated  to  be  secured  upon  Wynne's  property.     The 


SECT.    II ]  DOE    d.    GARNONS   V.    KNIGHT  619 

mortgage  deed  found  in  \\n\  parcel  was  tlieii  delivered  to  Garnons. 
It  was  a  mortgage  of  all  Wynne's  real  estates.  It  was  contended  on 
the  part  of  the  defendant  that  nothing  passed  by  the  deed,  inasmuch 
as  there  had  been  no  sufficient  delivery  of  it  to  the  mortgagee,  or  to 
any  person  on  his  behalf,  to  make  it  valid;  and,  secondly,  because  it 
was  fraudulent  and  void  against  the  creditors  of  the  grantor  under 
the  Statute  13  Eliz.  c.  5.  The  learned  judge  overruled  the  objec- 
tions, and  the  defendant  then  proved  that  Mr.  Wynne,  in  May,  1820, 
had  delivered  to  him  a  bond  and  mortgage  of  his  real  estates,  to 
secure  money  due  from  Wynne  to  him;  and  that  by  his  will  he  de- 
vised all  his  estates  to  the  defendant.  Knight,  in  trust  to  sell  and 
pay  his  debts.  It  was  further  proved,  that  about  the  5th  of  April 
a  skin  of  parchment  with  a  £12  stamp  was  prepared  by  Wynne's 
order,  and  for  a  few  days  he  remained  in  his  private  room,  with  the 
door  shut.  A  clerk  entered  the  room  and  found  him  writing  upon 
a  parchment :  he  afterwards  locked  the  door.  There  was  no  draft  of 
the  mortgage  in  the  office,  and  he  never  mentioned  it.  The  whole 
of  the  deed  was  in  Wynne's  own  handwriting.  He  had  three  clerks, 
and  deeds  were  in  the  usual  course  of  business  executed  in  the  office, 
and  witnessed  by  himself  and  his  clerks.  The  learned  judge  told 
the  jury,  that  the  first  question  for  their  consideration  was,  whether 
the  mortgage  to  the  lessor  of  the  plaintiff  was  duly  executed  by 
Wynne  the  deceased;  but  that  if  they  thought  it  was  originally 
well  executed,  the  question  for  their  consideration  would  be,  whether 
the  delivery  to  Mrs.  Elizabeth  Wynne  was  a  good  delivery;  and  he 
told  them  he  was  of  opinion,  that  if,  after  it  was  formally  executed, 
Mr.  Wynne  had  delivered  it  to  a  friend  of  Mr.  Garnons,  or  to  his 
banker  for  his  use,  such  delivery  would  have  been  sufficient  to  vest 
in  Mr.  Garnons  the  interest  intended  to  be  conveyed  to  him  under 
it;  and  the  question  for  them  to  decide  was,  whether  the  delivery  to 
Miss  Wynne  was,  under  all  the  circumstances  of  the  case,  a  depart- 
ing with  the  possession  of  the  deed,  and  of  the  power  and  control 
over  it,  for  the  benefit  of  Mr.  Garnons,  and  to  be  delivered  to  him 
either  in  Mr.  Wynne's  lifetime  or  after  his  death;  or  whether  it  was 
delivered  to  Miss  Wynne  merely  for  safe  custody  as  the  depository, 
and  subject  to  his  future  control  and  disposition.  If  they  were  of 
opinion  that  it  was  delivered  merely  for  the  latter  purpose,  they 
should  find  for  the  defendant,  otherwise  for  the  })laintiff.  A  ver- 
dict having  been  found  for  the  plaintiff,  CampheU  in  last  Michaelmas 
Term  obtained  a  rule  nisi  for  a  new  trial. 

Bayley,  J.,  now  delivered  the  judgment  of  the  court. 

There  were  two  points  in  this  case.  One,  whether  there  was  an 
effectual  delivery  of  a  mortgage  deed,  under  which  the  lessor  of  the 
plaintiff  claimed,  so  as  to  make  the  mortgage  operate.  The  other, 
whether  such  mortgage  was  or  was  not  void  against  creditors  or  a 
subsequent  mortgagee.     Upon  the  first  point  the  facts  were  shortly 


620  DOE   d.    GAR-NONS    V.    KNIGHT  [CHAP.   X 

these.  In  July,  1814,  Mr.  Wynne,  iui  attorney,  who  was  seised  in  fee 
of  the  premises  in  question,  made  a  communication  through  a  friend 
to  the  lessor  of  the  plaintiff,  who  was  a  client,  that  he  (Wynne)  had 
misapplied  above  £10,000  of  his  (Garnons')  money.  Garnons  an- 
swered, he  relied  and  expected  that  Wynne  would  provide  him  securi- 
ties for  his  money ;  and  Wynne  said  he  would  make  him  perfectly 
secure,  and  he  should  be  no  loser.  On  the  12th  of  April,  1820,  Wynne 
went  to  his  sister's,  who,  with  her  niece,  lived  next  door  to  him, 
and  produced  the  mortgage  in  question,  ready  sealed.  He  then  signed 
it  in  the  presence  of  the  niece,  and  used  the  words  "  I  deliver  this 
as  my  act  and  deed."  The  niece,  by  his  desire,  attested  the  execu- 
tion, and  then  Mr.  Wynne  took  it  away.  The  niece  knew  not  what 
the  deed  was,  nor  was  Mr.  Garnons'  name  mentioned.  In  the  same 
month  of  April  he  delivered  a  brown  paper  parcel  to  his  sister,  say- 
ing, "  Here,  Bess,  keep  this ;  it  belongs  to  Mr.  Garnons."  He  came 
for  it  again  in  a  few  days,  and  she  gave  it  to  him;  and  he  returned 
it  on  the  14th,  15th,  or  16th  of  April,  saying,  "  Here,  put  this  by." 
It  was  then  less  in  bulk  than  before,  and  contained  the  mortgage  in 
question.  Mr.  Wynne  died  the  10th  of  August  following,  and  after 
his  death  the  parcel  was  opened,  and  the  mortgage  found.  Mr. 
Garnons  knew  nothing  of  the  mortgage  until  after  it  was  so  found. 
My  Brother  Garrow,  who  tried  the  cause,  left  two  questions  to  the 
jury:  one,  w^hether  the  mortgage  was  duly  executed;  the  other, 
whether  the  delivery  to  the  sister  was  a  good  delivery;  and  he  ex- 
plained to  them,  that  if  the  delivery  was  a  departing  with  the  pos- 
session, and  of  the  power  and  control  over  the  deed  for  the  benefit 
of  Mr.  Garnons,  in  order  that  it  might  be  delivered  to  him  either  in 
Mr.  Wynne's  lifetime,  or  after  his  death,  the  delivery  would  be 
.j?ood  •  but  if  it  was  delivered  to  the  sister  for  safe  custody  only  for 
Mr.  Wynne,  and  to  be  subject  to  his  future  control  and  disposition, 
it  was  not  a  good  delivery,  and  they  ought  to  find  for  the  defendant. 
The  jury  found  for  the  plaintiff.  Their  opinion,  therefore,  was,  that 
Mr.  Wynne  parted  with  the  possession  and  all  power  and  control 
over  the  deed,  and  that  the  sister  held  it  for  Mr.  Garnons,  free  from 
the  control  and  disposition  of  the  brother.  It  w^as  urged  upon  the 
argument,  that  there  was  no  evidence  to  warrant  this  finding,  and 
that  the  conclusion  which  the  jury  drew  had  no  premises  upon  which 
it  can  be  supported.  Is  this  objection,  however,  valid?  Why  did 
Mr.  Wynne  part  Avith  the  possession  to  his  sister,  except  to  put  it 
out  of  iiis  own  control?  Why  did  he  say  when  he  delivered  the  first 
parcel,  "  It  belongs  to  Mr.  Garnons,"  if  he  did  not  mean  her  to 
understand,  that  it  was  to  be  held  for  Mr.  Garnons'  use  ?  And  though 
the  sister  did  return  it  to  her  brother  when  he  asked  for  it,  Avould 
she  not  have  been  justified  had  she  refused?  Might  she  not  have 
said,  "You  told  me  it  belonged  to  Mr.  Garnons,  and  I  will  part 
with  it  to  no  one  but  wdth  his  concurrence."     The  finding,  therefore, 


SECT.    II]  DOE   cl.    GARNONS    V.    KNIGHT  621 

of  the  jury,  if  this  be  a  material  point,  appears  to  me  well  warranted 
by  the  evidence,  and  then  there  will  be  two  questions  upon  the  first 
point :  one,  Avhether  when  a  deed  is  flnly  signed  and  sealed,  and 
formally  delivered  with  apt  words  of  delivery,  but  is  retained  by  the 
party  executing  it,  that  retention  will  obstruct  the  operation  of  the 
deed;  the  other,  whether  if  delivery  from  such  party  be  essential,  a 
delivery  to  a  third  person  will  be  sufficient,  if  such  delivery  puts  the 
instrument  out  of  the  power  and  control  of  the  party  who  executed 
it,  though  such  third  person  does  not  pass  the  deed  to  the  person 
who  is  to  be  benefited  by  it,  until  after  the  death  of  the  party  by 
whom  it  was  executed.  Upon  the  first  question,  whether  a  deed  will 
operate  as  a  deed  though  it  is  never  parted  with  by  the  person  who 
executed  it,  there  are  many  authorities  to  show  that  it  will.  In 
Barlow  v.  Heneage,  Prec.  Cha.  211,  George  Heneage  executed  a  deed 
purporting  to  conve}^  an  estate  to  trustees,  that  they  might  receive 
the  profits,  and  put  them  out  for  the  benefit  of  his  two  daughters, 
and  gave  bond  to  the  same  trustees  conditioned  to  pay  to  them  £1,000 
at  a  certain  day,  in  trust  for  his  daughters;  but  he  kept  both  deed 
and  bond  in  his  own  power,  and  received  the  profits  of  the  estate 
till  he  died :  he  noticed  the  bond  by  his  will,  and  gave  legacies  to 
his  daughters  in  full  satisfaction  of  it,  but  the  daughters  elected  to 
have  the  benefit  of  the  deed  and  bond,  and  filed  a  bill  in  equity  ac- 
cordingly. It  was  urged,  that  the  deed  and  bond  being  voluntary, 
and  always  kept  by  the  father  in  his  own  hands,  Avere  to  be  taken  as 
a  cautionary  provision  only.  Lord  Keeper  Wright  said,  these  were 
the  father's  deeds,  and  he  could  not  derogate  from  them;  and  the 
parties  having  agreed  to  set  the  maintenance  of  the  daughters  against 
the  profits  received  by  the  father  from  the  estate,  he  decreed  upon 
the  bond  only;  but  that  decree  was,  that  interest  should  be  paid 
upon  the  bond  from  the  time  when  the  condition  made  the  money 
payable.  In  Clavering  v.  Clavering  (Prec.  Cha.  235;  2  Yern.  473; 
1  Bro.  Pari.  Cas.  122),  Sir  James  Clavering  settled  an  estate  upon 
one  son  in  1684,  and  in  1690  made  a  settlement  of  the  same  estate 
upon  another  son:  he  never  delivered  out  or  published  the  settle- 
ment of  1684,  but  had  it  in  his  own  power,  and  it  was  found  after 
his  death  amongst  his  waste  papers.  See  2  Yern.  474,  475.  A  bill 
was  filed  under  the  settlement  of  1690,  for  relief  against  the  settle- 
ment of  1684;  but  Lord  Keeper  Wright  held,  the  relief  could  not  be 
granted,  and  observed,  that  though  the  settlement  of  1684  was 
always  in  the  custody  or  poAver  of  Sir  James,  that  did  not  give  him 
a  power  to  resume  the  estate,  and  he  dismissed  the  bill.  In  Lady 
Hudson's  Case,  cited  by  Lord  Keeper  Wright,  a  father,  being  dis- 
pleased Avith  his  son,  executed  a  deed  giving  his  wife  £100  per  annum 
in  augmentation  of  her  jointure;  he  kept  the  setthmient  in  his  own 
power,  and  on  being  reconciled  to  his  son,  cancelled  it.  The  wife 
louud  the  deed  after  his  death,  and  on  a  trial  at  \i\\\,  the  deed  being 


622  DOE   d.    GARNONS    V.    KNIGHT  [CHAP.   X 

proved  to  have  been  executed,  was  adjudged  good,  though  cancelled, 
and  the  son  having  filed  a  bill  in  equity  to  be  relieved  against  the 
deed,  Lord  Somers  dismissed  the  bill.  In  Naldred  v.  Gilham,  1  Pr. 
Wms.  577,  Mrs.  ISTaldred  in  1707  executed  a  deed,  by  which  she  cove- 
nanted to  stand  seised  to  the  use  of  herself,  remainder  to  a  child  of 
three  years  old,  a  nephew,  in  fee.  She  kept  this  deed  in  her  posses- 
sion, and  afterw^ards  burnt  it  and  made  a  new  settlement;  a  copy  of 
this  deed  having  been  surreptitiously  obtained  before  the  deed  was 
burnt,  a  bill  was  filed  to  establish  this  copy,  and  to  have  the  second 
settlement  delivered  up ;  and  Sir  Joseph  Jekyl  determined,  with  great 
clearness,  for  the  plaintiff,  and  granted  a  perpetual  injunction  against 
the  defendant,  who  claimed  under  the  second  settlement.  It  is  true, 
Lord  Chancellor  Parker  reversed  this  decree;  but  it  was  not  on  the 
ground  that  the  deed  was  not  well  executed,  or  that  it  was  not  bind- 
ing because  Mrs.  Naldred  had  kept  it  in  her  possession,  but  because 
it  was  plain  that  she  intended  to  keep  the  estate  in  her  own  power; 
that  she  designed  that  there  should  have  been  a  power  of  revocation 
in  the  settlement;  that  she  thought  while  she  had  the  deed  in  her 
custody,  she  had  also  the  estate  at  her  command;  that,  in  fact,  she 
had  been  imposed  upon,  by  the  deed's  being  made  an  absolute  con- 
veyance, which  was  unreasonable,  when  it  ought  to  have  had  a  power 
of  revocation,  and  because  the  plaintiff,  if  he  had  any  title,  had  a 
title  at  law,  and  had,  therefore,  no  business  in  a  court  of  equity. 
Lord  Parker's  decision,  therefore,  is  consisteiit  with  the  position 
that  a  deed,  in  general,  may  be  valid,  though  it  remains  under  the 
control  of  the  party  who  executes  it,  not  at  variance  with  it ;  and  so 
it  is  clearly  considered  in  Bough  ton  v.  Boughton,  1  Atkyns,  625.  In 
that  case,  a  voluntary  deed  had  been  made,  without  power  of  revoca- 
tion, and  the  maker  kept  it  by  him.  Lord  Hardwicke  considered  it 
as  valid,  and  acted  upon  it;  and  he  distinguished  it  from  Naldred 
V.  Gilham,  which  he  said  was  not  applicable  to  every  case,  but  de- 
pended upon  particular  circumstances;  and  he  described  Lord  Mac- 
clesfield as  having  stated,  as  the  ground  of  his  decree,  that  he  would 
not  establish  a  copy  surreptitiously  obtained,  but  would  leave  the 
party  to  his  remedy  at  law,  and  that  the  keeping  the  deed  (of  which 
there  were  two  parts)  implied  an  intention  of  revoking  (or  rather  of 
reserving  a  power  to  revoke).  Upon  these  authorities,  it  seems  to 
me,  that  where  an  Instrument  is  formally  sealed  and  delivered,  and 
there  is  nothing  to  qualify  the  delivery  but  the  keeping  the  deed  in 
the  hands  of  the  executing  party,  nothing  to  show  he  did  not  in- 
tend it  to  operate  immediately,  that  it  is  a  valid  and  effectual  deed, 
and  that  delivery  to  the  party  who  is  to  take  by  it,  or  to  any  person 
for  his  use,  is  not  essential.  I  do  not  rely  on  Doe  v.  Roberts,  2  Barn. 
&  A.  367,  because  there  the  brother  who  executed  the  deed,  though 
he  retained  the  title  deeds,  parted  with  the  deed  which  he  executed. 
But  if  this  point  were  doubtful,  can  there  be  any  question  but 


SECT.    Il]  DOE   d.    GARNONS    V.    KNIGHT  623 

that  delivery  to  a  third  person,  for  the  use  of  the  party  in  whose 
favor  a  deed  is  made,  where  the  grantor  parts  with  all  control  over 
the  deed,  makes  the  deed  effectual  from  the  instant  of  such  delivery? 
The  law  will  presume,  if  nothing  appear  to  the  contrary,  that  a  man 
will  accept  what  is  for  his  benefit  (11  East,  623,  per  Lord  Ellen- 
borough)  ;  and  there  is  the  strongest  ground  here  for  presuming  Mr. 
Garnons'  assent,  because  of  his  declaration  that  he  relied  and  ex- 
pected Mr.  Wynne  would  provide  him  security  for  his  money,  and 
Wynne  had  given  an  answer  importing  that  he  would.  Sheppard, 
who  is  particularly  strict  in  requiring  that  the  deed  should  pass  from 
the  possession  of  the  grantor  (and  more  strict  than  the  cases  I  have 
stated  imply  to  be  necessary),  lays  it  down  that  delivery  to  the  grantee 
will  be  sufficient,  or  delivery  to  anyone  he  has  authorized  to  receive 
it,  or  delivery  to  a  stranger  for  his  use  and  on  his  behalf  (Shep.  57). 
And  2  Eoll.  Abr.  (K.)  24,  pi.  7;  Taw  v.  Bury,  Dyer,  167  b;  1  Anders. 
4;  and  Alford  v.  Lea,  2  Leon.  Ill;  Cro.  Eliz.  54;  and  3  Co.  27,  are 
clear  authorities,  that,  on  a  delivery  to  a  stranger  for  the  use  and 
on  the  behalf  of  the  grantee,  the  deed  will  operate  in-stanter,  and  its 
operation  will  not  be  postponed  till  it  is  delivered  over  to  or  ac- 
cepted by  the  grantee.  The  passage  in  Kolle's  Abridgment  is  this: 
"  If  a  man  make  an  obligation  to  I.,  and  deliver  it  to  B.,  if  I.  get 
the  obligation,  he  shall  have  action  upon  it,  for  it  shall  be  intended 
that  B.  took  the  deed  for  him  as  his  servant  (3  H.  6,  27)."  The 
point  is  put  arguendo  by  Paston,  Sergt.,  in  3  II.  6,  who  adds,  "  for 
a  servant  may  do  what  is  for  his  master's  advantage,  what  is  to  his 
disadvantage  not."  In  Taw  v.  Bury  an  executor  sued  upon  a  bond  : 
the  defendant  pleaded,  that  he  caused  the  bond  to  be  written  and 
sealed,  and  delivered  it  to  Calmady  to  deliver  to  the  testator  as  de- 
fendant's deed;  that  Calmady  offered  to  deliver  it  to  testator  as 
defendant's  deed,  and  the  testator  refused  to  accept  it  as  such; 
wherefore  Calmady  left  it  with  testator  as  a  schedule,  and  not  as 
defendant's  deed,  and  so  non  est  factum.  On  demurrer  on  this 
and  another  ground.  Sir  Henry  Brown  and  Dyer,  Justices,  held  that, 
first  by  the  delivery  of  it  to  Calmady,  without  speaking  of  it  as  the 
defendant's  deed,  the  deed  was  good,  and  was  in  law  the  deed  of 
defendant  before  any  delivery  over  to  the  testator,  and  then  testa- 
tor's refusal  could  not  undo  it  as  defendant's  deed  from  the  beginning, 
and  they  gave  judgment  for  the  plaintiff,  very  much  against  the 
opinion  of  the  Chief  Justice,  Sir  Anthony  Brown;  but  others  of  the 
King's  Bench,  says  Dyer,  agreed  to  that  judgment.  It  was  afterwards 
reversed,  however,  for  a  discontinuance  in  the  pleadings.  Sir  A. 
Brown's  doubt  might  possibly  be  grounded  on  this,  that  the  delivery 
to  Calmady  was  conditional,  if  the  testator  would  accept  it;  and  if 
so,  it  would  not  invalidate  the  position,  which  alone  is  nuiterial  here, 
that  an  unconditional  delivery  to  a  stranger  for  the  benefit  of  the 
grantee  will  inure  immediately  to  the  benefit  of  the  grantee,  and  will 


624  DOE   cl.    GARNONS    V.    KNIGHT  [CHAP.   X 

make  the  deed  a  perfect  deed,  without  any  concurrence  by  the  grantee. 
And  this  is  further  proved  by  Alford  v.  Lea,  2  Leon.  110;  Cro.  Eliz. 
54.  That  was  debt  upon  an  arbitration  bond;  the  award  directed, 
that  before  the  feast  of  Saint  Peter  both  parties  should  release  to  each 
other  all  actions.  Defendant  executed  a  release  on  the  eve  of  the 
feast,  and  delivered  it  to  Prim  to  the  use  of  the  plaintiff,  but  the 
plaintiff  did  not  know  of  it  until  after  the  feast,  and  then  he  dis- 
agreed to  it,  and  whether  this- was  a  performance  of  the  condition 
was  the  question.  It  was  urged  that  it  was  not,  for  the  release  took 
no  effect  till  agreement  of  the  releasee.  It  was  answered,  it  was 
immediately  a  release,  and  defendant  could  not  plead  non  est  factum, 
or  countermand  it,  and  plaintiff  might  agree  to  it  when  he  pleased. 
And  it  was  adjudged  to  be  a  good  performance  of  the  condition, 
no  place  being  appointed  for  delivering  it,  and  the  defendant  might 
not  be  able  to  find  the  plaintiff,  and  they  relied  on  Taiv's  Case.  This, 
therefore,  was  a  confirmation,  at  a  distance  of  twenty-eight  years,  of 
Taw  v.  Bury;  and  at  a  still  later  period  (33  Eliz.),  it  was  again  con- 
firmed in  the  great  case  of  Butler  v.  Baker,  3  Co.  26  b.  Lord  Coke 
explains  this  point  very  satisfactorily.  "  If  A.  make  an  obligation  to 
B.,  and  deliver  it  to  C.  to  the  use  of  B.,  this  is  the  deed  of  A.  pres- 
ently. But  if  C.  offer  it  to  B.,  there  B.  may  refuse  it  in  'pais,  and 
thereby  the  obligation  will  lose  its  force  (but,  perhaps,  in  such  case, 
A.  in  an  action  brought  on  this  obligation  cannot  plead  non  est 
factum,  because  it  was  once  his  deed) ;  and  therewith  agrees  Hil.  1 
Eliz.,  Ta^ve's  Case,  s.  p.  Bro.  Ab.  Donee,  pi.  29;  8  Vin.  488.  The 
same  law  of  a  gift  of  goods  and  chattels,  if  the  deed  be  delivered  to 
the  use  of  the  donee,  the  goods  and  chattels  are  in  the  donee  pres- 
ently, before  notice  or  agreement;  but  the  donee  may  make  refusal 
in  pais,  and  by  that  the  property  and  interest  will  be  divested,  and 
such  disagreement  need  not  be  in  a  court  of  record.  ISTote,  reader, 
by  this  resolution  you  will  not  be  led  into  error  by  certain  opinions 
delivered  by  the  way  and  without  premeditation,  in  7  Ed.  4,  7,  &c., 
and  other  books  obiter."  LTpon  these  authorities  we  are  of  opinion 
that  the  delivery  of  this  deed  by  Wynne,  and  putting  it  into  the  pos- 
session of  his  sister,  made  it  a  good  and  valid  deed  at  least  from  the 
time  it  was  put  into  the  sister's  possession. 

The  remaining  question  then  is  this,  whether  this  deed  is  void  as 
against  creditors  under  the  13  Eliz.  c.  5,  or  as  against  defendant  as  a 
purchaser  under  27  Eliz.  c.  4?  As  to  creditors,  there  was  no  proof 
of  outstanding  debts  at  the  time  of  the  trial,  nor  any  proof  of  there 
being  any  creditor  except  the  defendant,  and  he  may  be  considered 
in  the  double  character  of  creditor  and  purchaser.  The  facts  in  evi- 
dence as  to  him  are  merely  these:  that  in  May  or  June,  1820,  Mr. 
Wynne  delivered  to  his  son  a  bond  and  mortgage  for  defendant  and 
title  deeds,  and  the  mortgage  and  title  deeds  related  to  the  same 
premises  as  Mr.  Garnons'  mortgage.     What  was  the  nature  of  the 


SECT.    Il]  HALL    V.    HAERIS  625 

defendant's  debt  did  not  appear,  or  what  was  the  consideration  for 
the  bond  and  mortgage.  Whether  any  money  was  advanced  when 
such  bond  and  mortgage  was  given,  or  whether  it  was  for  a  pre-exist- 
ing debt,  whether  it  was  obtained  by  pressure  from  the  defendant, 
or  given  voluntarily  and  of  his  own  motion  by  Mr.  Wynne,  and 
whether  the  defendant  knew  of  it  or  not,  are  points  upon  which  there 
was  no  proof,  and  under  these  circumstances  we  cannot  say  the 
defendant  made  out  a  case  to  entitle  him  to  treat  Mr.  Garnons'  deed 
as  void  under  either  of  the  Statutes  of  Elizabeth.  Should  he  be  able 
hereafter  to  show  that  his  mortgage  is  entitled  to  a  preference,  the 
present  verdict  will  be  no  bar  to  his  claim.  For  these  reasons  we 
are  of  opinion  that  the  rule  for  a  new  trial  must  be  discharged. 

Rule  discharged. 


HALL  V.  HAKRIS  et  Al. 
5  Ired.  Eq.  (N.  C.)  303.    1848. 

Cause  removed  from  the  Court  of  Equity  of  Montgomery  County, 
at  the  Spring  Term,  1848. 

The  facts  in  this  case  are  fully  stated  in  a  case  between  the  same 
parties,  HaU  v.  Harris,  3  Ired.  Equity,  289,  and  so  much  of  them  as 
is  necessary  to  the  understanding  of  the  decision  now  made  is  set 
forth  in  the  opinion  of  the  court  here  delivered. 

Pearson,  J.  When  this  case  was  before  this  court  at  June  Term, 
1844,  it  was  decided,  that  an  execution  does  not  bind  equitable  inter- 
ests and  rights  of  redemption  from  its  teste,  as  in  ordinary  cases,  but 
from  the  time  of  "  execution  served ;  "  and  it  was-  declared  that  the 
plaintiff  would  be  entitled  to  a  decree,  pro^nded  the  deed,  under 
which  he  claimed,  took  effect  before  the  execution,  under  which  the 
defendant  Harris  claimed,  was  issued.    3  Ired.  Eq.  289. 

We  are  satisfied,  that  the  view  then  taken  of  the  case  was  correct. 
The  rights  of  the  parties  depend  upon  that  single  question. 

The  execution  issued  on  the  7th  of  March,  1840.  The  plaintiff 
alleges,  that  the  deed  took  effect  on  the  2d  of  March,  1840.  The  facts 
are,  that  on  the  2d  of  March  the  plaintiff  and  the  defendant  Morgan 
made  an  agreement,  by  which  the  plaintiff  was  to  give  Morgan  $725, 
for  the  land,  to  be  paid,  a  part  in  cash,  and  the  balance  in  notes  and 
specific  articles,  as  soon  as  the  plaintiff  was  able,  which  he  expected 
would  be  in  a  few  days,  and  Morgan  was  to  make  a  deed  to  the  plain- 
tiff, and  hand  it  to  Col.  Hardy  Morgan,  to  be  by  him  handed  to  the 
])laintiff,  when  he  paid  the  price.  Accordingly  on  that  day  the  plain- 
tiff paid  to  Morgan  a  wagon  and  some  leather,  which  was  taken  at 
the  price  of  $.57.50  and  Morgan  signed  and  sealed  the  deed,  and 
handed  it  to  Col.  Morgan  to  be  handed  to  the  plaintiff,  when  he  paid 
the  balance  of  the  price.  The  deed  was  witnessed  by  Col.  Morgan  and 
one  Sanders,  and  is  dated  on  the  2d  of  March.     Afterwards  on  the 


626  HALL    V.    HARRIS  [CHAP.   X 

tenth  of  March,  the  plaintiflf  paid  to  Morgan  the  balance  of  the 
$725,  with  the  exception  of  $152,  for  which  Morgan  accepted  his 
note,  and  the  deed  was  then  handed  to  the  plaintiff  by  Col.  Morgan. 
The  question  upon  these  facts  is,  whether  the  deed  take  effect  from 
the  2d  or  from  the  10th  of  March  ?  We  are  of  opinion,  that  it  takes 
effect  from  the  2d,  at  which  time,  according  to  the  agreement,  it  Avas 
signed,  sealed,  and  delivered  to  Col.  Morgan,  to  be  delivered  to  the 
plaintiff,  when  he  should  pay  ^;he  price.  The  effect  of  the  agreement 
was  to  give  the  plaintiff  the  equitable  estate  in  the  land,  and  to  give 
Morgan  a  right  to  the  price.  The  purpose,  for  which  the  deed  was 
delivered  to  a  third  person,  instead  of  being  delivered  directly  to  the 
plaintiff,  was  merely  to  secure  the  payment  of  the  price.  When  that 
was  paid,  the  plaintiff  had  a  right  to  the  deed.  The  purpose,  for 
which  it  was  put  into  the  hands  of  a  third  person,  being  accomplished, 
the  plaintiff  then  held  it  in  the  same  manner,  as  he  would  have  held 
it,  if  it  had  been  delivered  to  him  in  the  first  instance.  This  was  the 
intention,  and  we  can  see  no  good  reason  why  the  parties  should  not 
be  allowed  to  effect  their  end  in  this  way. 

It  is  true,  the  plaintiff  was  not  absolutely  bound  to  pay  the  balance 
of  the  price.  Perhaps,  he  had  it  in  his  power  to  avail  himself  of  the 
Statute  of  Frauds,  and  it  would  seem  from  the  testimony,  that,  at  one 
time,  he  contemplated  doing  so,  on  account  of  some  doubt  as  to  the 
title;  but  he  comjilied  with  the  condition  and  paid  the  price.  His 
rights  cannot  be  affected  by  the  fact,  that  he  might  have  avoided  it. 
If  the  vendor  had  died,  after  the  delivery  to  the  third  person,  and 
before  the  payment,  the  vendee  upon  making  the  payment,  would  have 
been  entitled  to  the  deed ;  and  it  must  have  taken  effect  from  the  first 
delivery ;  otherwise,  it  could  not  take  effect  at  all.  The  intention  was, 
that  it  should  be  the  deed  of  the  vendor  from  the  time  it  was  delivered 
to  the  third  person,  provided  the  condition  was  complied  with.  If 
this  intention  is  hona  fide  and  not  a  contrivance  to  interfere  with  the 
right  of  creditors,  of  which  there  is  no  allegation  in  this  case,  it  must 
be  allowed  to  take  effect. 

A  distinction  is  taken  in  the  old  books,  between  a  case,  when  a 
paper,  being  signed  and  sealed,  is  handed  to  a  third  person,  with 
these  words :  "  Take  this  paper  and  hand  it  to  A.  B.  as  my  deed 
upon  condition,"  &c.,  and  a  case  where  these  words  are  used,  take 
"  This  deed  and  hand  it  to  A.  B.  upon  condition,"  <Src.  In  the  latter 
case  it  takes  effect  presently;  while  in  the  former,  it  is  held,  in  most 
eases,  not  to  take  effect  until  the  second  delivery.    Touchstone,  58,  59. 

The  distinction,  upon  which  this  "  diversity  "  is  made,  would  seem 
too  nice  for  practical  purposes,  to  be  a  mere  play  upon  words.  The 
intention  of  the  parties,  whether  one  set  of  words  be  used  or  the  other, 
is  to  make  it  a  deed  presently,  but  to  lodge  it  in  the  hand  of  a  third 
person,  as  a  security  for  the  performance  of  some  act.  If  it  was  not  to 
be  a  deed  presently,  provided  the  condition  be  afterwards  performed, 
the  maker  would  hold  it  himself,  and  the  agency  of  the  third  person 


SECT.    Il]  HALL    V.    HARRIS  627 

would  be  useless.  Indeed  the  idea,  that  the  third  person  is  a  mere 
agent  to  deliver  the  paj^er  as  a  deed,  if  particular  words  be  used, 
"  escrow  "  for  instance,  even  by  the  old  cases,  has  many  exceptions, 
and  the  deed  is  allowed,  in  such  cases,  to  take  effect.  As  if  the  maker 
dies,  as  in  the  case  above  put;  or  becomes  non  compos  mentis;  or, 
being  a  feine  sole,  marries ;  or  if  the  vendor  should  create  any  encum- 
brance, as  by  making  a  lease;  in  all  such  cases,  when  the  paper  was 
handed  to  the  third  person  to  be  delivered  as  a  deed  upon  condition, 
&c.,  it  is  allowed  to  take  effect  from  the  first  delivery,  in  order  to 
effectuate  the  intention  of  the  parties.  In  other  words,  when  it  can 
make  no  difference,  the  deed  takes  effect  from  the  second  delivery,  but 
if  it  does  make  a  difference,  then  the  deed  takes  effect  from  the  first 
delivery.  This  entirely  yields  the  question.  The  last  exception  cited 
above,  as  to  the  relation  of  the  deed,  in  case  of  "  escrow  "  to  avoid  a 
lease,  takes  in  the  case  under  consideration;  for  it  is  the  same,  whether 
the  encumbrance,  to  be  avoided,  proceeds  from  the  act  of  the  party, 
or  from  the  effect  of  an  execution,  as  the  object  is  to  make  the  deed 
effectual  and  to  carry  out  the  intention.     State  v.  Pool,  5  Ired.  105. 

But,  in  truth,  the  distinction  cannot  be  acted  upon  —  it  is  merely 
verbal,  and  whether  one  set  of  words  would  be  used,  or  the  other, 
would  be  the  result  of  mere  accident.  The  law  does  not  depend  upon 
the  accidental  use  of  mere  words  "  trusted  to  the  slippery  memory  of 
witnesses."  It  depends  upon  the  act,  that  a  paper,  signed  and  sealed, 
is  put  out  of  the  possession  of  the  maker.  It  must  be  confessed  (and 
with  reverence  I  say  it),  that  many  of  the  dicta  to  be  found  in  the 
old  books,  in  reference  to  deeds,  are  too  "  subtle  and  cunning  "  for 
practical  i;se,  and  have  either  been  passed  OA'er  in  silence,  or  wholly 
explained  away. 

We  are  satisfied  from  principle  and  from  a  consideration  of  the 
authorities,  that  when  a  paper  is  signed  and  sealed  and  handed  to  a 
third  person  to  be  handed  to  another  upon  a  condition,  which  is  after- 
wards complied  with,  the  ])aper  becomes  a  deed  by  the  act  of  parting 
with  the  possession,  and  takes  effect  presently,  without  reference  to 
the  precise  words  used,  unless  it  clearly  appears  to  be  the  intention, 
that  it  should  not  then  become  a  deed,  and  this  intention  would  be 
defeated  by  treating  it  as  a  deed  from  that  time,  as,  if,  no  fraud  being 
suggested,  the  paper  is  handed  to  the  third  person,  before  the  parties 
have  concluded  the  bargain,  and  fixed  upon  the  terms;  which  cannot 
well  be  supposed  ever  to  be  the  case;  for  in  ordinary  transactions, 
the  preparation  of  deeds  of  conveyance,  which  is  attended  with 
trouble  and  expense,  usually  comes  after  the  agreement  to  sell. 

There  must  be  a  decree  for  the  j)laintiff,  with  costs  against  the 
defendant  Harris. 

Per  Curiam.  Decree  accordingli/.^ 

1  Whitfield  V.  Harris,  48  Miss.  710,  accord.  And  sec  Dcttmcr  v.  Bihrcus, 
106  Iowa  585.  But  compare  Wolcott  v.  Johns,  7  Colo.  App.  360;  Jackson  v. 
Rowland,  6  Wend.  (N.  Y.)  666. 


628  BAKER    V.    SNAVELY  [CHAP.   X 

BAKER  ET  Al.  v.  SNAVELY  et  Al. 
84  Kan.  179.     1911. 

Appeal  from  Finney  district  court.  Opinion  filed  March  11,  1911. 
Affirmed. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. :  William  Weisiger  was  the  record  owner  of  the  lots  in 
question.  On  the  6th  day  of  JSTovember,  1901,  one  Clarence  Ford 
obtained  a  tax  deed  to  the  lots,  and  his  right  thereto  was  conveyed 
to  John  Baker,  who,  subsequently,  and  on  the  5th  day  of  October, 
1905,  brought  this  action  in  the  district  court  of  Finney  county  to 
quiet  his  title  to  the  lots  against  Weisiger  and  wife  and  others.  Serv- 
ice was  made  by  publication.  On  the  21st  day  of  jSTovember,  1905, 
judgment  was  rendered  in  favor  of  the  plaintiff  quieting  his  title. 

On  March  3,  1906,  Weisiger  and  wife  filed  their  motion  and  affi- 
davit to  open  the  judgment,  and  also  filed  an  answer  to  the  petition 
of  Baker,  in  which  they  made  a  general  denial  of  the  allegations 
of  the  petition,  and,  for  a  second  defense,  alleged  that  the  tax  deed 
upon  which  the  plaintiff  based  his  title  was  null  and  void.  On 
April  21,  1906,  the  motion  to  open  the  judgment  was  allowed. 

September  22,  1906,  the  Weisigers  filed  a  motion  to  make  S.  C. 
Thompson  a  party  defendant,  which  motion  was  sustained  ISTovember 
30,  1906,  and  summons  served  on  Thompson  on  December  2,  1906. 
Permission  was  also  given  the  Weisigers,  on  November  30,  1906,  to 
file  an  amended  answer  and  cross-petition,  in  which,  in  addition  to 
the  allegations  of  the  former  answer,  they  alleged  that  defendant 
Thompson  purchased  the  property  in  controversy  on  or  about  the  31st 
day  of  March,  1906,  from  Noah  B.  Matkins,  to  whom  the  plaintiff, 
John  Baker,  on  the  same  day  had  conveyed  the  property;  that  both 
transfers  were  made  with  the  full  knowledge  of  the  interest  of  the 
Weisigers  in  the  property,  and  were  made  for  the  purpose  of  de- 
frauding them  out  of  their  interest  therein,  and  that  such  transfers 
were  null  and  void  as  against  them. 


Relation  back  as  against  the  heir  of  the  grantor.  Davis  v.  Clark,  58  Kan. 
100;  Gw'ld  v.  Althouse,  71  Kan.  604;  Cook's  Adm'r.  v.  Hendricks,  4  T.  B. 
Mon.  (Ky.)  500;  Tharaldson  v.  Everts,  87  Minn.  168;  Webster  v.  Trust  Co., 
145  N.  Y.  275.  See  Jackson  v.  Jackson,  67  Oreg.  44;  Vorheis  v.  Kitch,  8 
Phila.  (Pa.)  554;  Gammon  v.  Bunnell,  22  Utah  421.  Contra,  Teneick  v. 
Flagg,  29  N.  J.  L.  25  (semble). 

As  against  one,  who,  after  the  dehvery  in  escrow  but  with  knowledge 
thereof,  purchases  the  land  from  the  grantor.  Cannon  v.  Handle y,  72  Cal. 
133;  Conneau  v.  Ge?;s,  73  Cal.  176;  McDonald  v.  Huff,  77  Cal.  279;  Lciter 
V.  Pike,  127  111.  287;  Leuns  v.  Prather,  14  Ky.  L.  Rep.  749. 

No  relation  back  as  against  a  bona  fide  purchaser  from  the  grantor  after 
the  delivery  in  escrow  and  before  the  performance  of  the  condition.  Wal- 
dock  V.  Frisco  Lumber  Co.,  176  Pac.  (Okl.)  218;  May  v.  Emerson,  52  Oreg. 
262  (see  Oregon,  Laws  (1920),  §  301). 


SECT.    II ]  BAKER    V.    SNAVELY  629 

Oil  August  23,  1907,  by  leave  of  court  and  Avitb  the  consent  of  the 
Weisigers,  Thompson  filed  an  answer  in  which  he  admitted  that  he 
claimed  an  interest  in  the  property,  and  made  a  general  denial  to  the 
allegations  of  the  cross-petition,  alleging,  in  substance,  that  he  pur- 
chased the  premises  from  Noah  B.  Matkins  on  the  lOtli  of  January, 
1906;  that  Matkins  executed  a  warranty  deed  conveying  the  premises 
to  him ;  that  at  that  time  he  was  actually  occupying  the  premises,  and 
has  ever  since  continued  in  the  possession  thereof ;  that  he  purchased 
the  property  in  good  faith,  after  taking  legal  advice  that  the  title  to 
the  premises  was  in  j^oah  B.  Matkins,  and  after  being  advised  by 
counsel  that  the  title  to  the  property  had  been  quieted  in  the  action 
of  John  Baker  against  Mary  H.  Suavely  et  ah;  that  he  made  a  pay- 
ment on  the  property,  and  took  it  subject  to  a  mortgage  for  $1650, 
which  he  had  since  paid  off  and  discharged;  that  at  the  time  of 
the  purchase  he  had  no  notice  of  any  claims  by  defendant  William 
Weisiger,  and  bought  the  property  in  good  faith;  that  the  tax  deed 
in  question  was  recorded  in  the  office  of  the  register  of  deeds  of 
Finney  county  on  the  7th  of  Xovember,  1901,  that  five  years  had 
expired  after  the  recording  of  the  deed  prior  to  any  pleading  filed  by 
defendant  Weisiger  against  this  defendant ;  and  that  the  action,  as  to 
him,  was  barred  by  the  five-year  statute  of  limitation. 

Trial  was  had  before  Charles  E.  T.obdoll,  judge  pro  fern.,  and  the 
following  findings  of  fact  and  conclusions  of  law  were  made: 

"  FINDINGS    OF    FACT. 

"  (1)  That  the  defendant^  Weisiger,  is  the  owner  of  the  fee  or 
patent  title  to  the  property  in  controversy,  unless  such  title  is  ex- 
tinguished by  the  tax  deed  to  Baker  or  by  the  judgment  heretofore 
rendered  in  this  case  and  subsequent  conveyances  which  are  claimed 
to  have  been  accepted  in  good  faith  and  in  faith  of  such  judgment. 

"  (2)  That  on  November  21,  1905,  the  plaintiff,  John  Baker, 
obtained  judgment  in  this  court  and  in  this  cause  quieting  title 
in  him  to  the  land  in  controversy  against  the  defendants,  Weisigers. 

"  (3)  That  on  November  28,  1905,  John  Baker  executed  a  suffi- 
cient deed  of  general  warranty  to  the  property  in  controversy  to 
Noah  B.  Matkins  and  placed  the  same  in  escrow  for  future  deliver}^ 
with  G.  L.  Miller. 

"(4)  That  on  March  3,  1006,  the  dofeiidants,  Wil]i:mi  Weisiger 
and  wife,  filed  in  this  court  their  motion,  in  proper  form,  to  open 
up  the  judgment  thereinbefore  rendered  in  favor  of  Baker  as 
recited  in  finding  No.  2. 

"  (5)  That  thereafter,  and  on  April  21,  1906,  by  the  considera- 
tion of  this  court  such  decree  and  judgment  was  fully  set  aside  and 
opened  up. 

''  (6)  That  on  March  31,  1906,  the  deed  from  Baker  to  Mat- 
kins was,  by  Miller,  delivered  to  Matkins. 


630  BAKER    V.    SNAVELY  [CHAP.   X 

'•'(7)  That  on  February  11),  1906,  Noah  B.  Matkins,  a  single 
man,  executed  a  sufficient  Avarranty  deed  to  the  property  in  contro- 
vers}'^  to  the  defendant  S.  C.  Thompson,  which  deed  was  placed  in 
escrow  with  G.  L.  Miller,  as  was  the  deed  from  Baker  to  Matkins. 

"  (8)  That  on  the  same  date  that  the  deed  from  Baker  to  Mat- 
kins was  delivered  by  Miller  the  deed  from  Matkins  to  Thompson 
was  by  Miller  delivered  to  Thompson. 

"  (9)  That  Thompson  took  possession  of  the  property  in  contro- 
versy on  January  6,  1906,  and  has  been  continuously  in  possession 
since  that  time. 

"  (10)  That  the  title  of  Baker  at  the  time  of  his  judgment 
rested  upon  the  tax  deed  introduced  in  evidence. 

"  (11)  That  a  part  of  the  consideration  for  the  tax  deed  on 
which  Baker's  title  rested  was  what  was  known  as  '  current  university 
tax/  levied  for  the  year  1896. 

"  (12)  That  the  so-called  redemption  notice  for  the  lots  in  con- 
troversy, published  by  the  county  treasurer  of  Finney  county,  con- 
tained in  the  amount  stated  as  necessary  to  the  redemption  of  said 
lots  the  sum  of  thirty-five  cents  as  costs  for  advertising,  and  in- 
cluded it  for  each  of  the  three  years  embraced  in  the  notice  neces- 
sary to  redeem,  and  that  the  treasurer's  fee  of  twenty-five  cents 
was  al'so  included  in  the  notice  for  each  year." 

"  CONCLUSIONS  OF  LAW. 

"  (1)  That  the  tax  deed  to  Baker  is  voidable  and  should  be  set 
aside  because  of  the  facts  stated  in  findings  11  and  12. 

"  (2)  That  the  creation  of  the  escrow  with  reference  to  the  deeds 
from  Baker  to  Matkins  and  Matkins  to  Thompson  was  not  in  law 
delivery  of  the  deeds. 

"  (3)  That  the  delivery  of  such  deeds,  which  actually  took  place 
on  March  31,  1906,  can  not  be  made  to  relate  back  so  as  to  relieve 
Thompson  and  Matkins  of  the  effect  of  the  notice  to  open  up  judg- 
ment, which  motion  was  filed  before  the  escrow  was  terminated. 

"  (4)  That  at  the  time  of  the  delivery  of  their  deeds  to  them 
Matkins  and  Thompson  had  constructive  notice,  which  was  binding 
upon  them,  of  the  motion  then  filed  and  pending  in  this  cause  to 
open  up  and  vacate  the  judgment,  and  that  neither  of  them  was  a 
purchaser  in  good  faith  and  in  faith  of  such  judgment." 

The  contention  of  the  appellees  is  that  the  deed  from  Baker  and 
his  wife  to  Matkins  did  not  become  a  conveyance  of  the  property 
until  the  actual  delivery  thereof  on  the  31st  of  March,  1906,  that 
the  deed  from  Matkins  to  Thompson  did  not  become  an  actual  con- 
veyance until  the  same  date,  and  that  Thompson  had  constructive 
notice  of  the  pendency  of  the  action  before  the  deed  was  delivered 
to  him. 

Upon  the  other  hand,  the  appellant  contends  that  both  the  deed 


SECT.    II  ]  BAKER    V.    SNAVELY  631 

from  Baker  to  Matkins  and  the  deed  from  Matkins  to  him  were 
executed  long  before  the  motion  to  reopen  the  judgment  was  filed, 
on  March  3,  1906;  that  the  considerations  therefor  were  paid  in 
part  at  the  time  of  the  execution  of  the  contracts,  and  the  remainder 
in  full  when  the  deeds  were  delivered,  on  March  31,  1906;  that  they 
were  in  escrow  with  Miller  from  the  time  of  their  execution  until 
their  actual  deliver}^,  and  that  when  the  actual  delivery  was  made, 
on  March  31,  1906,  the  delivery  dated  back  to  the  time  of  the  origi- 
nal contracts  and  partial  payments.  These  adverse  contentions 
constitute  the  only  substantial  question  in  the  case. 

Whether  a  deed  executed  and  placed  in  escrow  relates  back  to 
the  time  of  the  contract  and  execution  thereof,  so  as  to  vest  the 
grantee  with  the  full  title  from  that  time,  or  whether  it  becomes 
such  conveyance  only  upon  the  full  performance  of  the  conditions, 
seems  to  depend  upon  which  of  the  two  theories  will  promote  justice 
under  all  the  circumstances  of  tlie  individual  case. 

"  This  doctrine  of  relation  (from  the  time  of  the  second  delivery 
to  the  time  of  the  delivery  in  escrow)  is  of  ancient  origin,  and  has 
always  been  applied,  both  at  la^v  and  in  equity,  to  meet  the  re- 
quirements of  justice,  to  protect  purchasers,  and  to  effectuate  the  in- 
tent of  the  parties  to  contracts."  (Scott  v.  Stone,  72  Kan.  545, 
548,  citing  numerous  cases.) 

The  syllabus  in  that  case  states  the  rule  strongly,  without  ex- 
ception, and  holds  that,  under  the  circumstances  of  that  case,  the 
delivery  dated  back  to  the  time  of  making  the  contract.  The 
same  doctrine  was  upheld  in  Davis  v.  Clark,  58  Kan.  100.  In 
each  of  those  cases  justice  clearly  required  that  the  conveyance  be 
held  as  of  the  date  of  the  delivery  in  escrow  and  not  as  of  the  date 
of  the  second  delivery. 

In  a  case  similar  to  this.  Hill  v.  Miller,  post,  196,  as  between  the 
rights  of  a  purchaser  from  a  tax-deed  holder  and  the  holder  of  the 
patent  title,  Avho  had  brouglit  an  action  to  set  aside  a  decree  quiet- 
ing the  title,  it  was  said : 

"At  all  events  he  [the  purchaser]  was  not  protected  by  tlic  statute 
unless  he  bought  and  paid  for  the  land  prior  to  January  18,  1908, 
the  date  when  the  proceeding  was  begun  to  set  aside  the  decree 
quieting  title."      (p.    198.) 

No  finding  is  made  by  the  court  in  this  case  in  regard  to  any 
payment  made  by  the  appellant  prior  to  the  delivery  of  the  deed 
from  the  party  holding  it  in  escrow,  which  was  twenty-eight  days 
after  the  filing  of  the  motion  to  se<t  aside  the  judgment.  Nor  does 
the  appellant  disclose  in  his  evidence  how  much  he  paid  toward 
the  purchase  price,  at  or  prior  to  the  time  of  the  execution  of  the 
deed.  The  evidence  is  that  he  made  a  payment.  According  to  the 
evidence,  he  purchased  seventeen  lots  for  $3500,  nearly  $206  per  lot, 
and  assumed  the  pa.^Tnent  of  a  mortgage  for  $1650,  Avhich  he  after- 
ward paid,  leaving  $1850,  upon  which  "  a  payment  "  was  made  at 


632  WHEELWRIGHT    V.    WHEELWRIGHT  [CHAP.   X 

the  time  of  purchase,  and  the  remainder  March  31,  1906.  The  three 
lots  involved  in  this  action  would,  at  the  price,  amount  to  about 
$618,  leaving  over  $1200,  less  such  payment  as  he  may  have  made, 
and  the  amount  of  which  he  does  not  disclose,  to  protect  himself 
against  any  failure  of  title.  He  was  bound  to  take  notice,  at  the 
time  he  actually  received  his  deed  and  made  final  payment,  of  the 
proceeding  to  vacate  the  judgment  quieting  the  title,  and,  as  he 
has  failed  to  show  that  he  was  unable  to  protect  himself  from  any 
loss,  if  the  title  to  the  lots  should  eventually  be  shown  to  be  in  the 
appellees,  there  is  no  reason  for  holding  that  the  second  delivery 
of  the  deed  related  back  to  the  time  it  was  delivered  in  escrow. 

On  the  other  hand,  the  invalidity  of  the  tax  deed  is  not  con- 
tested, and  the  appellees'  equities  in  the  case  are  very  strong.  We 
think  the  court  correctly  decided  the  case.  We  have  not  considered 
various  other  assignments  of  error,  as  it  seems  to  be  conceded  that 
the  case  must  turn  upon  this  one  question. 

The  judgment  is  affirmed.^ 


WHEELWRIGHT  et  Al.  v.  WHEELWRIGHT 
2  Mass.  447.     1807. 

The  petitioners  set  forth  that  Joseph  [Wheelwright]  is  seised  in 
fee  simjjle  of  four  undivided  ninth  parts,  and  the  other  petitioners  of 
two  undivided  ninth  parts,  of  thirty-one  acres  of  salt-marsh  lying 
in  Wells,  in  common  with  the  said  Aaron  Wheelwright,  and  they 
pray  that  their  respective  parts  may  be  set  off  to  them  in  severalty. 

The  respondent  pleads  in  bar  that  Samuel  Wheelwright,  grand- 
father of  the  respondent,  on  the  30th  day  of  January,  a.d.  1700,  being 
seised  in  fee  of  the  premises,  made  his  last  will  in  writing,  which 
was  afterwards  duly  proved,  and  by  which  he  devised  the  premises 
to  his  son,  Joseph  Wheelwright,  father  of  the  respondent,  in  fee  tail 
general,  who  entered  and  was  seised,  and  from  whom  the  premises 
descended  to  the  respondent,  as  eldest  son  and  heir  in  tail  to  his 
father, —  and  traverses  the  seisin  in  common  with  the  petitioners, 
which  they,  in  their  replication,  affirm,  and  tender  an  issue  to  the 
country,  which  is  joined  by  the  respondent. 

Upon  trial  of  this  issue  before  Thatcher,  J.,  October  Term,  a.d. 
1805,  the  respondent  produced  the  last  will  of  Samuel  Wheelwright, 
by  which  it  was  admitted,  for  this  trial,  that  the  premises  were  de- 
vised in  tail  to  Joseph,  son  of  the  testator,  and  father  of  the  respond- 
ent, and  also  of  Joseph  W.,  one  of  the  petitioners,  and  of  the  hus- 
band of  Mary  W.,  another  of  the  petitioners,  and  grandfather  of  the 

1  And  see  Price  v.  Pittsburgh  Rd.  Co.,  34  111.  13;  Mohr  v.  Joslin,  162 
Iowa  34;  Frost  v.  Bpekman.  1  Johns.  Ch.  (N.  Y.)  288;  Professor  Harry  A. 
Bigelow  in  26  Harv.  L.  Rev.  565,  572-575. 


SECT.    Il]  WHEELWRIGHT    V.    WHEELWRIGHT  633 

remaining  petitioners.  It  was  also  admitted  tliat  the  respondent 
was  the  heir  male  of  Joseph,  his  father. 

The  petitioners  produced,  in  support  of  their  claim,  two  deeds  of 
the  said  Joseph,  bearing  date  May  4,  1795,  one  whereof  purported 
to  be  a  conveyance  of  four  ninth  parts  to  the  petitioner  Joseph,  and 
the  other  a  conveyance  of  two  ninth  parts  to  the  remaining  peti- 
tioners; and  they  relied  on  these  deeds  to  show  that  they  were  re- 
spectively seised,  in  fee  simple,  of  the  several  shares  so  conveyed. 
Upon  producing  these  deeds  by  the  petitioners,  the  respondent  called 
for  the  evidence  of  their  execution  before  they  should  be  read. 
I^athaniel  Wells,  Esq.,  was  produced  as  a  witness,  who  testified  that, 
in  the  year  1795,  the  petitioner  Joseph  requested  him,  by  direction 
from  his  father,  as  he  said,  to  write  those  two  deeds.  Having  written 
them,  on  the  4th  of  May,  1795,  the  father  called  upon  him,  and  signed 
and  sealed  the  two  deeds  in  presence  of  the  witness  and  his  brother, 
since  deceased,  and  delivered  them  for  the  use  of  the  grantees,  and 
that  he  and  his  brother  subscribed  their  names  as  witnesses.  That 
it  was  the  intent  of  the  parties  that  the  grantor  should  have  the  use 
of  the  premises  during  his  life;  and  as  some  of  the  grantees  were 
minors,  and  could  not  secure  the  use  to  him,  that  the  deeds  were 
delivered  as  escroivs,  as  he  expressed  it,  to  be  delivered  by  him  to 
the  grantees  upon  the  death  of  the  grantor,  which  the  witness  has 
accordingly  done.  That  the  witness  understood  from  the  grantor  that 
his  intent,  in  executing  the  deeds,  was  to  prevent  the  entail  from  de- 
priving the  grantees  of  the  land  conveyed. 

The  counsel  for  the  respondent  objected  to  the  reading  of  the 
deeds  to  the  jury  upon  this  evidence,  upon  the  ground  that  there  was 
no  proof  that  the  same,  or  either  of  them,  was  duly  executed  and 
delivered  by  the  grantor  in  his  lifetime  to  either  of  the  grantees, 
or  to  any  person  authorized  by  them,  or  either  of  them,  to  receive 
the  same ;  and  that  if  they  had  been  duly  executed  and  delivered,  they 
were  not  made  bona  fde,  but  merely  and  for  the  express  purpose  of 
destroying  the  entail  of  said  lands. 

The  judge  overruled  the  objection,  permitted  the  deeds  to  go  in 
evidence,  and  directed  the  jury  that  they  were  sufficient  and  legal 
evidence  to  maintain  the  issue  on  the  part  of  the  petitioners.  After 
a  verdict  for  the  petitioners,  the  respondent's  counsel  filed  exceptions 
to  the  above  opinion  and  direction  of  the  judge,  which  were  allowed 
and  signed  pursuant  to  the  Statute,  and  at  the  last  July  Term  of 
the  court,  the  question  of  the  validity  of  those  exceptions  came  on 
to  be  argued. 

The  cause  was  continued  for  advisement,  and  at  this  term  the 
opinion  of  the  court  was  delivered  by 

Parsons,  C.  .1.  (who  stated  the  history  of  the  cause,  and  pro- 
ceeded). The  right  which  the  father  of  tlie  respondent  had  to  con- 
vey any  of  the  lands  he  held  in  tail  must  be  derived  from  the  Statute 
of  March  8,  1792.    By  that  Statute  it  is  made  lawful  for  any  person 


634  WHEELWRIGHT    V.    WHEELWRIGHT  [CHAP.    X 

of  full  age,  seised  in  fee  tail  of  any  lands,  by  deed  duly  executed  be- 
fore two  subscribing  witnesses,  acknowledged  before  the  Supreme 
Judicial  Court,  Court  of  Common  Pleas,  or  a  justice  of  the  peace, 
and  registered  in  the  records  of  the  county  where  the  lands  are,  for 
a  good  or  valuable  consideration,  bona  fide  to  convey  such  lands,  or 
any  part  thereof,  in  fee  simple,  to  any  person  capable  of  taking  and 
holding  such  estate;  and  such  deed,  so  made,  executed,  acknowledged, 
and  registered,  shall  bar  all  estates  tail  in  such  lands,  and  all  re- 
mainders and  reversions  expectant  thereon. 

From  inspecting  the  deeds  produced  in  evidence  in  this  cause,  it 
appears  that  two  subscribing  witnesses,  to  whose  credibility  no 
objection  is  made,  have  certified  that  they  were  signed,  sealed  and 
delivered,  in  their  presence.  And  it  further  appears  that  the 
grantor,  on  the  same  day,  acknowledged  that  each  instrument  was 
his  deed  before  a  justice  of  the  peace. 

One  objection  made  by  the  respondent  is,  that,  admitting  the 
deeds  to  have  been  executed  in  the  form  and  manner  required  by  the 
Statute  in  this  case,  yet  these  conveyances  are  not  bona  fide,  being 
made,  not  for  a  valuable  consideration,  but  for  the  purpose  of  de- 
priving the  heir  in  tail  of  his  inheritance.  The  deeds  purport  to  be 
for  a  valuable  consideration  in  money,  and  for  love  and  affection  to 
his  issue,  which  is  a  good  consideration.  The  Statute  also  provides 
that  the  conveyance  may  be  on  good  consideration.  It  is  therefore 
very  clear  that  the  Statute  intended  that  the  tenant  in  tail  might 
bar  the  heir  in  tail,  by  deed  conveying  the  land  to  his  relatives,  exe- 
cuted for  a  good  although  not  a  valuable  consideration.  This  he 
might  do  by  a  common  recovery,  and  this  method  by  deed  is  sub- 
stituted by  the  Statute  in  the  place  of  that  common  assurance,  the 
effect  of  which  is  founded  on  legal  fictions.  And  it  is  certain  that 
justice,  or  parental  affection,  will  often  induce  parents  who  hold 
their  lands  in  tail  to  make  provision  for  the  younger  branches  of 
their  family  out  of  the  entail.  As  the  Statute  has  made  the  estate 
tail  assets  for  the  payment  of  the  debts  of  the  tenant,  before  and 
after  his  decease,  a  bona  fide  conveyance  w^as  required  by  the  Statute, 
to  prevent  alienations  to  defraud  creditors,  and  not  to  protect  the 
heir  in  tail.    This  objection  cannot  prevail. 

The  other  objection  is  that,  by  the  Statute,  the  conveyance  should 
be  completed,  and  the  estate  pass,  in  the  lifetime  of  the  tenant  in 
tail,  and  that  the  deed  should  be  sealed,  delivered,  and  acknowledged, 
by  him  as  his  deed ;  that,  in  the  case  at  bar,  the  deeds  were  delivered 
by  the  grantor  to  Judge  Wells,  not  as  his  deeds,  but  as  his  writings 
or  escrows,  to  be  delivered  as  his  deeds  by  the  judge  to  the  grantees 
on  his,  the  grantor's  death;  that  they  could  have  no  effect  until  de- 
livered by  the  judge  accordingly;  and,  as  the  grantor  was  dead 
before  the  second  delivery,  they  were  never  his  deeds,  but  are  void. 

This  objection  seemed  to  deserve  much  consideration.  The  Stat- 
ute certainly  intended  that  the  conveyance  of  the  estate  tail  should 


SECT.    Il]  WHEELWRIGHT    V.    WHEELWRIGHT  635 

be  executed  in  the  lifetime  of  the  tenant ;  and  therefore,  if  there  be 
no  acknowledgment  of  the  deed  by  him,  the  defect  cannot  be  supplied 
by  the  testimony  of  the  subscribing  witnesses  after  his  death,  as  it 
may  be  in  conveyances  of  estates  not  entailed.  The  reason  is,  as 
common  recoveries  must  be  suffered  in  the  lifetime  of  the  tenant  in 
tail,  and  at  a  court  holden  at  stated  times,  and  the  heir  in  tail  has  a 
chance  that  the  tenant  may,  after  the  commencement  of  the  suit,  die 
before  the  term,  so  it  was  intended  to  leave  him  the  chance  of  the 
tenant's  dying  before  acknowledgment,  which,  as  the  Statute  was 
first  drawn,  could  be  made  only  in  some  court  of  record;  although, 
as  it  was  amended,  it  may  now  be  made  before  a  justice  of  the  peace. 
There  is  therefore  some  chance  saved  to  him,  but  of  much  less  con- 
sequence than  it  was  before  the  bill  was  amended. 

The  law,  so  far  as  it  relates  to  the  nature  of  this  objection,  is  very 
well  settled.  If  a  grantor  deliver  any  writing  as  his  deed  to  a  third 
person,  to  be  delivered  over  by  him  to  the  grantee,  on  some  future 
event,  it  is  the  grantor's  deed  presently,  and  the  third  person  is  a 
trustee  of  it  for  the  grantee;  and  if  the  grantee  obtain  the  writing 
from  the  trustee  before  the  event  happen,  it  is  the  deed  of  the 
grantor,  and  he  cannot  avoid  it  by  a  plea  of  non  est  fad  rim,  whether 
generally  or  specially  pleaded.  This  appears  from  Perk.  143,  144, 
and  from  the  case  of  Bushell  v.  Pasmore,  6  Mod.  217,  218.  But  if 
the  grantor  make  a  writing,  and  seal  it,  and  deliver  it  to  a  third 
person,  as  his  writing  or  escrow,  to  be  by  him  delivered  to  the 
grantee,  upon  some  future  event,  as  his,  the  grantor's  deed,  —  and  it 
be  delivered  to  the  grantee  accordingly,  —  it  is  not  the  grantor's 
deed  until  the  second  delivery;  and  if  the  grantee  obtain  the  pos- 
session of  it  before  the  event  happen,  yet  it  is  not  the  grantor's 
deed,  and  he  may  avoid  it  by  pleading  non  est  factum.  This  appears 
from  Perk.  142,  137,  138. 

It  is  generally  true  that  a  deed  delivered  as  an  escrow,  to  be  de- 
livered over  as  the  deed  of  the  party  making  it.  on  a  future  event, 
takes  its  effect  from  the  second  delivery,  and  shall  be  considered  as 
the  deed  of  the  party  from  that  time.  Perk.  143,  144;  3  Co.  35  b, 
36  a. 

Whether  the  deeds  in  this  case  were  delivered  to  Judge  Wells  as 
writings  to  be  delivered  over  as  the  grantor's  deeds  on  his  death,  or 
whether  they  were  delivered  as  the  deeds  of  the  grantor  to  Judge 
Wells,  in  trust  for  the  grantees,  to  be  delivered  to  thorn  on  the 
grantor's  death,  is  a  question  of  fact,  to  be  determined  by  the  evidence. 
This  evidence  results  from  the  testimony  of  Judge  Wells,  and  from 
the  inspection  of  the  deeds.  The  deeds  appear  to  have  been  signed, 
sealed,  and  delivered,  in  the  presence  of  two  subscribing  witnesses, 
and  to  have  been  acknowledged  as  the  deeds  of  the  grantor  before  a 
justice  of  the  peace.  The  witness  swears  that  the  grantor  did  then 
sign,  seal,  and  deliver,  them  for  the  use  of  the  grantees.  Thus  far 
there  can  be  no  doubt.    But  the  witness  further  testifies  that,  because 


636  WHEELWRIGHT    V.    WHEELWRIGHT  [CHAP.   X 

the  grantor  was  to  have  the  use  of  the  premises  during  his  life,  and 
some  of  the  grantees  being  minors,  the  deeds  were  delivered  to  him  as 
escrows,  to  be  delivered  to  the  grantees  upon  the  grantor's  death. 
What  the  witness  understood  by  escrow  is  not  explained.  He  might 
consider  them  as  escrows,  because  he  was  to  have  the  custody  of  them 
until  the  grantor's  death.  To  aid  his  memory,  he  therefore  refers  us 
to  the  memorandum  he  made,  at  the  time,  upon  the  wrapper  of  the 
deeds.  In  that  memorandum. they  are  called  the  two  deeds  of  the 
grantor,  naming  him,  to  the  grantees,  naming  them,  to  be  kept  until 
the  death  of  the  grantor,  and  then  to  be  delivered  to  the  grantees. 
Here  they  are  not  called  the  writings,  or  escrows,  but  the  deeds,  of  the 
grantor.  The  weight  of  the  evidence  is  certainly  very  great,  if  not 
conclusive,  in  favor  of  the  deeds  having  been  delivered  by  the  grantor, 
as  his  deeds,  and  deposited  with  Judge  "Wells,  in  trust  for  the 
grantees.  Upon  this  ground  the  deeds  were  very  properly  admitted 
as  evidence,  and  the  direction  of  the  judge  was  correct.- 

But  if  the  deeds  are  to  be  considered  as  delivered  to  Judge  Wells, 
not  as  the  deeds,  but  as  the  writngs,  of  the  grantor,  we  must  not 
thence  conclude  that  they  are  void.  Although  generally  an  escrow 
takes  its  effect  from  the  second  delivery,  yet  there  are  excepted  cases, 
in  which  it  takes  its  effect,  and  is  considered  the  deed  of  the  maker, 
from  the  first  delivery.  The  exception  is  founded  on  necessity,  id  res 
valeat.  Thus  Perk.  139,  140.  If  a  feme  sole  seal  a  writing,  and 
deliver  it  as  an  escrow,  to  be  delivered  over  on  condition,  and  she 
afterwards  marry,  and  the  writing  be  then  delivered  over  on  perform- 
ance of  the  condition,  it  shall  be  her  deed  from  the  first  delivery; 
otherwise,  her  marriage  would  defeat  it.  In  Brook's  Beading,  on 
the  Statute  of  Limitations,  p.  150,  there  is  another  exception.  A. 
delivers  a  deed,  as  an  escrow,  to  J.  S.,  to  deliver  over  on  condition 
performed,  before  which  A.  becomes  non  compos  m,entis;  the  condi- 
tion is  then  performed,  and  the  deed  delivered  over;  it  is  good,  for  it 
shall  be  A.'s  deed  from  the  first  deliA-ery.  Another  exception  is  in  3 
Co.  35  b,  36  a.  Lessor  makes  a  lease  by  deed,  and  delivers  it  as  an 
escrow,  to  be  delivered  over  on  condition  performed,  before  which 
lessor  dies,  and  after,  it  is  delivered  over  on  condition  performed: 
the  lease  shall  be  the  deed  of  the  lessor  from  the  first  delivery.  There 
is  also  a  strong  exception  in  5  Co.  85.  If  a  man  deliver  a  bond  as  an 
escrow,  to  be  delivered  on  condition  performed,  before  which  the 
obligor  or  obligee  dies,  and  the  condition  is  after  performed  —  here 
there  could  be  no  second  delivery,  yet  is  it  the  deed  of  the  obligor 
from  the  first  delivery,  although  it  was  only  inchoate;  but  it  shall 
be  deemed  consummate  by  the  performance  of  the  condition. 

Therefore,  if  the  deeds  in  this  case  were  delivered  to  Judge  Wells 
as  escrow^s,  and  by  him  delivered  over  on  the  death  of  the  grantor, 
they  must  take  their  effect,  and  be  considered  as  the  deeds  of  the 
grantor,  from  the  first  delivery,  he  being  dead  at  the  second  delivery. 
And  the  cases  in  3  Co.  36  a,  and  5  Co.  85,  are  in  point.     It  may 


SECT.   II]  NOLAN    V.    OTNEY  637 

here  be  observed,  that  it  is  not  to  be  presumed  that  it  was  the  inten- 
tion of  tho  grantor  to  deliver  these  deeds  as  escrows,  to  be  after 
delivered  as  his  deeds,  on  the  event  of  his  death;  when,  from  the 
nature  of  the  event,  they  could  not  be  considered  as  his  deeds  from 
the  second  delivery.  The  presumption  is  violent  that  he  considered 
Judge  Wells  as  a  trustee  of  the  grantees.  But  whether  the  deeds 
were  delivered  to  him  as  escrows,  or  in  trust  for  the  grantees,  —  in 
either  case  the  verdict  must  stand,  and  the  first  judgment  to  be 
entered  thereon,  namely,  that  partition  be  made;  and  let  a  warrant 
issue  to  commisisoners  to  make  partition.^ 


.  NOLAN  ET  Al.  v.  OTNEY  et  Al. 
75  Kan.  311.     1907. 

Error  from  Washington   district   court ;   William   T.   Dillon, 
judge.     Opinion  filed  March  9,  1907.     Affirmed. 

Mason,  J. :  Martin  Dolan  executed  an  instrument  purporting  to  be 
a  warranty  deed  conveying  property  to  Joseph  Otney,  but  containing 
these  words  immediately  following  the  granting  clause,  which  was  in 
the  usual  form  : 

"  This  deed  is  made  with  the  understanding  that  the  same  is  not  to 
take  effect  or  be  in  force  until  the  death  of  the  grantor,  and  upon 
the  death  of  the  grantor  is  to  take  eflFect  and  at  said  time  to  vest  in 
the  said  grantee  the  absolute  title  in  foe  simple  of  the  property  above 
described. 

"And  it  is  further  understood  tliat  tlie  said  Joseph  Otney  is  to  take 
care  of  and  maintain  the  said  M.  Dolan,  a  single  man,  during  the 
balance  of  his  natural  life." 

The  instrument  was  placed  in  the  hands  of  a  third  person,  to  be 
delivered  after  the  grantor's  death  to  the  grantee.     Dolan  died  and 

1  Cases  where  the  contest  was  between  the  heir  or  devisee  of  the  grantor 
and  the  grantee  are  Hutton  v.  Cramer,  10  Ariz.  110;  Bury  v.  Young,  98  Cal. 
446;  Schuur  v.  Rodmback,  133  Cal.  85;  Shea  v.  Murphy,' IGi  111.  614;  Bogan 
V.  Swenrmg,  71,  199  111.  454;  DeGrafj  v.  Manz,  251  111.  531;  Stout  v.  Rayl,  146 
Ind.  379;  Lippold  v.  Lippohi,  112  Iowa  134;  White  v.  Watts,  118  Iowa  549; 
SchUlinger  v.  Bawek,  135  Iowa  131;  Young  v.  McWiHiams,  75  Kan.  243; 
Foster  v.  Mansfield,  3  Met.  (Mass.)  412;  Loomis  v.  Lootnis,  178  Mich.  221; 
Wickland  v.  Lindquist,  102  Minn.  321;  Dickson  v.  Miller,  124  Minn.  346; 
Williams  V.  Latham.,  113  Mo.  165;  Rowley  v.  Bowyer,  75  N.  J.  Eq.  80; 
Ruggles  v.  Lawson,  13  Johns.  (N.  Y.)  285;  Stonehill  v.  Hastings,  202  N.  Y. 
115;  Ball  v.  Foreman,  37  Ohio  St.  132;  Reeder  v.  Reeder,  50  Oreg.  204;  Kittoc 
V.  Willey,  121  Wis.  548;  Wells  v.  Wells,  132  Wis.  73.  See  Hathaway  v.  Payne, 
34  N.  Y.  92.  ^  if     > 

Compare  Wittenhrock  v.  Cass,  110  Cal.  1 ;  Stewart  v.  Stewart,  5  Conn.  317; 
Gnlley  v.  Atkins,  78  Conn.  380;  Owen  v.  Williams,  114  Ind.  179;  Smileu  v. 
Smiley,  114  Ind.  258;  Brnum  v.  Austen,  35  Barb.  (N.  Y.)  341;  Rathmell  v. 
Shirey,  60  Ohio  St.  187;  Ladd  v.  Ladd,  14  Vt.  185;  Schrcckhise  v.  Wiseman, 
106  Va.  9. 


638  NOLAN    V.    OTNEY  [CHAP.   X 

the  delivery  was  made.  The  heirs  brought  a  suit  against  Otney  to 
have  the  deed  set  aside.  The  court  sustained  a  demurrer  to  their 
evidence,  and  they  prosecute  error. 

Some  months  before  his  death  Dolan  handed  the  deed  to  one  John 
Grimes,  -with,  directions  after  his  death  to  give  it  to  Otney.  On  the 
same  occasion,  however,  Dolan  said  to  Grimes :  "  Of  course,  if  I  ask 
you  for  the  deed  you  would  give  it  to  me."  Grimes  answered  that 
he  certainly  would,  and  Dolan.  responded :  "  Martin  will  never  ask 
for  it."  The  day  before  he  died,  however,  he  gave  Grimes  instruc- 
tions in  the  presence  of  Otney  to  deliver  the  deed  after  his  death,  pro- 
vided Otney  should  haul  some  corn,  pay  a  sum  of  money,  and  give 
a  note  for  $100.  These  conditions  were  fully  complied  with,  and, 
after  the  death  of  Dolan,  Grimes  handed  the  deed  to  Otney. 

The  question  which  has  been  discussed  by  counsel, is  w^hether  the 
language  of  the  deed,  in  connection  with  the  circumstances  attend- 
ing its  delivery,  shows  the  grantor  to  have  intended  that  no  title 
should  pass  until  his  death,  in  which  case  it  would  be  testamentary  in 
its  character  and  therefore  inoperative.  [The  court  then  considered 
Diirand  v.  Hlggins,  67  Kan.  110;  Uhl  v.  Railroad  Co.,  51  "W.  Ya. 
106,  114;  Love  v.  Blauw,  61  Kan.  496,  501;  West  v.  Wright,  115  Ga. 
277;  Hunt  v.  Hunt,  82  S.  W.  (Ky.)  998;  and  continued  as  follows:] 

Applying  the  reasoning  of  these  cases  to  the  facts  here  presented, 
we  are  convinced  that  the  real  purpose  of  Dolan,  so  far  as  disclosed 
by  the  language  of  the  deed  now  under  consideration,  notwithstand- 
ing his  failure  to  express  it  in  correct  terms,  was  to  vest  a  title  im- 
mediately in  Otney,  reserving  only  a  life-interest  in  himself;  that  is 
to  say,  the  deed  should  be  taken  to  mean  this  in  the  same  sense  and 
for  the  same  reasons  that  such  meaning  is  imputed  in  the  case  of  the 
deposit  of  an  ordinary  deed  under  the  same  circumstances  —  the 
words  relied  upon  to  change  the  usual  rule  do  not  have  that  effect. 
(See  as  to  the  general  rule  Young  v.  McWilliams,  ante,  p.  243.) 

A  further  question  arises  with  respect  to  the  paragraph  of  the  deed 
relating  to  the  obligation  of  the  grantee  to  care  for  and  maintain  the 
grantor  during  the  remainder  of  his  life.  A  very  similar  provision 
was  held,  in  Culy  v.  Upham,  135  Mich.  131,  97  N".  W.  405,  106  Am. 
St.  Rep.  388,  to  make  the  instrument  testamentary  in  character,  and 
therefore  invalid.  [The  court  then  discussed  Only  v.  Upham, 
and  continued  as  follows :] 

In  the  present  case,  although  a  part  of  the  consideration  of  the 
deed  was  that  the  grantee  should  care  for  the  grantor,  the  delivery  to 
him  was  nowhere  made  to  depend  upon  his  doing  so.  The  argument 
of  the  Michigan  case  has  therefore  no  application  to  the  provision 
referred  to,  and  no  reason  appears  for  regarding  such  provision  as 
fatal  to  the  validity  of  the  deed. 

Nevertheless  the  effect  of  imposing  a  condition  upon  the  delivery 
by  the  custodian  is  here  involved,  for  the  last  instructions  given 
to  Grimes  included  a  direction  to  hold  the  deed  until  Otney  should 


SECT,    II]  NOLAN    V.    OTNEY  639 

perform  certain  acts,  including  the  giving  of  a  note.  Probably 
the  question  Avhether  there  was  a  valid  delivery  must  be  determined 
by  what  took  place  at  that  time,  for  during  the  first  conversation 
on  the  subject  the  understanding  seemed  to  be  that  Dolan  had  not 
relinquished  control,  and  such  understanding  was  inconsistent  with 
an  effectual  present  delivery.  (Coh  v.  Cole,  [Mich.],  108  X.  W. 
101.) 

In  Taft  Y.  Taft,  59  Mich.  185,  26  X.  W.  426,  60  Am.  Rep.  291, 
after  an  elaborate  review  of  the  authorities,  the  conclusion  was 
reached  that  no  valid  delivery  can  be  accomplished  by  the  deposit 
of  a  deed  with  a  custodian  who  is  directed  to  hold  it  not  only  until 
the  grantor  dies  but  until  the  grantee  does  something  on  his  part, 
and  then  deliver  it  —  at  least  that  such  is  the  rule  unless  the  re- 
quired act  is  one  intended  to  be  performed,  or  at  all  events  capable 
of  performance,  while  the  grantor  is  yet  alive.  Otney  did  all  the 
acts  necessary  to  entitle  him  to  the  deed.  Whether  or  not  he  in  fact 
performed  them  before  Dolan  died,  he  might  have  done  so,  and 
his  doing  so  may  have  been  within  the  contemplation  of  the  parties. 
But  we  do  not  care  to  rely  upon  this  distinction.  The  vicAv  that  no 
effect  can  be  given  a  deed  placed  by  the  grantor  in  the  hands  of  a 
third  person  to  be  delivered  upon  his  death,  if  the  performance  of 
some  act  by  the  grantee  is  made  a  condition  of  such  delivery,  is 
supported  only  by  artificial  reasoning.  It  proceeds  upon  substan- 
tially this  argument :  A  deed  entrusted  to  a  stranger  for  delivery  at 
the  grantor's  death  can  be  upheld  only  upon  the  theory  that  it  is 
not  an  escrow,  but  that  the  title  passes  when  such  deposit  is  made; 
and  where  the  delivery  to  .the  grantee  is  made  to  depend  upon  some 
act  of  his,  the  instrument  is  an  escrow,  and  conveys  no  title  until 
finally  delivered,  or  at  any  rate  until  such  act  is  performed.  But 
while  it  is  true  that  ordinarily  title  is  not  changed  by  an  escrow  until 
it  is  rightfully  delivered  —  or  until  conditions  have  arisen  such  that 
it  of  right  ought  to  be  delivered  —  to  the  grantee,  it  is  often  held 
that  such  delivery  when  made  Avill  be  deemed  to  operate  by  rela- 
tion as  of  the  time  the  deposit  was  made.  This  is  uniformly 
done  when,  as  in  Davis  v.  Clark,  58  Kan.  100,  48  Pac.  563,  the  death 
of  the  grantor  makes  an  effective  delivery  thereafter  theoretically 
impossible.  (16  Cyc.  588;  11  A.  &  E.  Encycl.  of  L.  346.)  The  fic- 
tion of  an  earlier  delivery  by  relation  is  adopted  in  such  cases  to  pre- 
vent a  manifest  hardship  and  Avrong.  No  reason  is  apparent  why 
it  may  not  be  invoked  in  such  a  case  as  the  present  to  effectuate 
the  lawful  intentions  of  the  parties.  The  very  conception  that  a 
deed  deposited  with  a  stranger  to  be  delivered  at  the  grantor's 
death  operates  as  a  present  conveyance  is  a  fiction  of  like  charac- 
ter adopted  for  a  like  purpose.  (16  Cyc.  566.)  [The  court  then 
quoted  from  Craddoch  v.  Barnes,  142  X.  C.  89,  96,  97.] 

It  is  true  that  in  the  case  of  an  ordinary  escrow  it  is  the  expec- 
tation of  the  parties  that  the  matter  shall  be  fully  closed  up  before 


640  ■         NOLAN    V.    OTNEY  [CHAP.   X 

any  of  them  die,  and  where  the  death  of  one  of  them  intervenes 
it  occasions  a  situation  that  was  never  in  their  contemplation,  while 
here  an  arrangement  was  deliberately  made  that  the  practical 
operation  of  the  deed  should  begin  after  the  death  of  the  grantor, 
and  after  the  fulfilment  of  the  stated  conditions.  But  we  do 
,,vO  perceive  in  this  fact  any  reason  for  resorting  to  a  fiction  to  sup- 
port one  transaction  rather   than  the   other. 

To  call  the  requirement  imposed  on  the  grantee  a  condition  prece- 
dent to  the  vesting  of  title  is  to  beg  the  question;  if  the  title  is  re- 
garded as  passing  with  the  delivery  of  the  instrument  to  the  cus- 
todian it  is  a  condition  subsequent,  upon  the  non-performance 
of  which  the  title  will  revert.  So  far  as  the  grantor  and  his  heirs 
are  concerned  there  is  no  possible  hardship  in  considering  that 
when  he  has  placed  the  deed  beyond  his  recall  —  when  in  spite  of 
anything  he  can  do  it  must  ultimately  become  fully  effective  —  it 
becomes  operative  in  contemplation  of  law  at  once.  ISTo  difficulty 
is  presented  with  respect  to  the  intervening  rights  of  creditors, 
because  as  against  them  no  resort  could  be  had  to  the  fiction.  The 
situation  in  this  respect  is  not  affected  by  the  conditions  attached 
to  the  final  delivery,  for  the  same  distinction  is  made  where  none 
is  imposed.  Such  a  case  was  presented  in  Rathmell,  Exr.,  v.  Shirey 
et  al,  60  Ohio  St.  187,  53  N.  E.  1098,  although  the  instrument  is 
there  spoken  of  and  treated  as  an  escrow.     The  syllabus  reads : 

"An  instrument  for  the  conveyance  of  lands  without  substantial 
valuable  consideration,  deposited  with  a  third  person  as  an  escrow 
to  be  by  him  delivered  to  the  grantee  on  the  death  of  the  grantor, 
does  not,  by  relation,  vest  the  title  in  the  grantee  at  the  date  of  the 
first  delivery  to  the  prejudice  of  persons  who  thereafter,  without 
knowledge  of  the  instrument,  extend  credit  to  the  grantor." 

In  the  opinion  it  was  said : 

"  Whatever  terms  may  be  employed  in  stating  the  exception,  the 
relation  back  to  the  first  delivery  is  always  to  accomplish,  and 
never  to  defeat,  justice.  Bearing  in  mind  the  purpose  of  this  ex- 
ception, and  the  fact  that  the  deed  before  us  was  without  any  sub- 
stantial consideration,  it  is  quite  apparent  that  the  conclusion  of 
the  circuit  court  that  the  relation  back  should  be  allowed  to  cut  off 
the  claims  of  those  who  gave  credit  to  the  testator  between  the  first 
and  second  deliveries,  and  without  knowledge  of  the  instrument  is 
erroneous.  That  conclusion  derives  no  support  from  CrooJcs  v. 
Crooks,  34  Ohio  St.  610,  or  Ball  v.  Foreman,  37  Ohio  St.  132,  where 
the  title  was  held  to  pass  as  of  the  date  of  the  first  delivery  for  pur- 
poses clearly  within  the  exception  as  above  stated."     (Page  198.) 

The  theoretical  difficulties  regarding  the  location  of  the  title 
prior  to  the  performance  of  the  conditions,  if  the  principle  of  relation 
is  applied  in  this  case,  are  really  no  greater  than  in  any  other 
where  tesort  to  the  fiction  is  had;  for  instance,  in  those  cases  where 
there  is  uo  actual  acceptance  until  after  the  grantor's  death.     Ac- 


SECT.   II ]  COOK    V.    BROWN  641 

ceptance  is  of  course  essential  to  the  validity  of  any  deed,  yet  it  is 
common  for  deeds  to  be  upheld  of  the  existence  of  which  the  grantee 
never  heard  in  the  lifetime  of  the  grantor,  his  acceptance  being 
permitted  to  be  operative  by  relation  as  to  the  time  the  grantor 
surrendered  control.  Where  its  terms  are  purely  beneficial  to  the 
grantee  his  acceptance  is  presumed,  but  this  is  only  a  matter  of 
evidence. 

"As  stated  by  Justice  Ventris  in  Thomson  v.  Leach,  2  Vent.  198, 
a  man  *  cannot  have  an  estate  put  into  him  in  spite  of  his  teeth.' 
But  the  presumption  that  a  person  will  accept  a  pure,  unqualified 
gift  is  so  strong  that  the  courts  have  quite  generally  manifested 
a  disposition  to  act  upon  such  presumption  in  the  interim  as  a 
working  rule  for  the  operation  of  conveyances."  (Emmons  v.  Hard- 
ing, 162  Ind.  154,  159,  70  N".  E.  142.) 

If  under  such  circumstances  the  beneficiary  should  finally  from 
any  whim  or  caprice  refuse  to  accept  the  deed,  when  after  the 
death  of  the  grantor  he  learns  of  its  existence,  the  situation  would 
not  be  greatly  different  from  that  presented  by  his  failure  to  perform 
an  affirmative  act  where  one  is  required  of  him  as  a  condition  for 
its  final  delivery. 

The  question  is  not  free  from  doubt,  but  our  conclusion  is  that 
the  deed  here  involved  may  be  upheld  upon  the  theory  suggested. 
By  such  research  as  has  been  practicable  in  the  time  available  for 
the  purpose  we  have  found  but  two  modern  cases  other  than  those 
already  cited  in  which  the  grantor  placed  a  deed  with  a  third  per- 
son for  delivery  after  his  death  upon  conditions  to  be  performed  by 
the  grantee.  They  are  Gammon  v.  Bunnell,  22  Utah,  421,  64  Pac. 
958,  and  McCurry  v.  McCurry,  [Tex.  Civ.  App.],  95  S.  W.  35.  In 
each  of  these  the  deed  was  upheld,  but  in  neither  was  there  any  ex- 
tended discussion  of  the  effect  of  the  conditions. 

The  judgment  is  affirmed. 

Greene,  Burch,  Smith,  Porter,  Graves,  JJ.,  concurring. 

Johnston,  C.  J.,  concurs  in  the  judgment,  but  not  in  all  said  in 
the  opinion.^ 


COOK  r.  BllOWN 

34  N.  H.  460.     1857. 

Writ  of  Entry.- 

Eastman,  J.  The  question  which  was  found  for  the  plaintiff, 
and  upon  which  the  verdict  was  rendered,  was  the  delivery  of  the 

1  Compare  Prcwiit  v.  Ashford,  90  Ala.  294;  Hunter  v.  Hunter,  17  Barb 
(N.  Y.)  25;  DeBow  v.  Wolhyibcrg,  52  Oreg.  404;  Daris  v.  Brigham.  56  Orep. 
41;  Campbell  v.  Thomas,  42  Wi.s.  437;  Graham  v.  Graham,  1  Ves.  Jr.  272;  Pro- 
fcs.sor  Ralpli  W.  Aigler  in  16  Midi.  L.  Rev.  569. 

-  Onl.v  the  opinion,  and  only  that  part  of  the  opinion  which  relates  to  the 
question  of  deliverj-,  is  given. 


642  COOK  V.  BROWN  [chap.  X 

deed  by  Mrs.  Brown,  the  defendant's  husband,  to  liichard  F.  Fifield. 
If  this  deed  was  not  delivered,  the  demandant  was  entitled  to  recover ; 
and  the  jury,  under  the  rulings  and  instructions  of  the  court,  have 
found  that  it  was  not. 

But  were  the  instructions  of  the  court  correct  in  regard  to  the 
delivery  of  the  deed?  This  is  the  important  question  of  the  case. 
The  court  instructed  the  jury  that  if  the  deed  was  in  the  hands  of  the 
depositary,  to  be  delivered  to.  the  grantee,  either  before  or  after  the 
death  of  the  grantor,  without  the  grantor's  reserving  a  control  over 
it,  then  there  was  a  good  delivery.  But  if  the  grantor  reserved  such 
a  full  control  over  the  deed  during  her  life,  and  to  the  last  moment 
of  her  life,  there  was  no  delivery.  If  she  always  had  the  right 
to  control  the  destination  of  the  deed,  there  was  not  a  delivery,  but 
if  she  at  any  time  relinquished  her  right  in  favor  of  the  grantee, 
there  was  a  delivery;  that  the  question  was,  whether  she  always, 
until  her  death,  continued  to  have  the  right  to  recall  the  deed,  if 
she  pleased,  and  not  whether  she  did  in  fact  recall  it.  The  court 
were  requested  to  instruct  the  jury,  that  if  the  deed  was  to  remain 
in  the  hands  of  the  depositary  during  the  life  of  the  grantor,  sub- 
ject, however,  during  that  time  to  be  revoked  by  the  grantor,  and  if 
not  revoked  then  to  be  recorded,  the  deed  might  be  regarded  as  the 
deed  of  the  grantor  from  the  time  of  the  delivery  to  the  dej)ositary, 
if  it  was  not  subsequently  revoked.  These  instructions  the  court 
declined  to  give,  and  gave  those  which  we  have  stated.  The  point 
of  difference  between  the  two  was  this :  The  court  held  that  in 
order  to  make  the  delivery  good,  it  was  essential  that  the  grantor 
should  part  with  her  dominion  over  the  deed.  That  the  time  when 
the  grantee  was  to  receive  it  was  not  material,  whether  at  or  before 
the  decease  of  the  grantor,  but  that  the  delivery  to  the  depositary 
must  be  without  the  power  of  recall  in  the  grantor ;  while  the  defend- 
ant contended  that  if  the  deed  was  in  fact  delivered  in  pursuance 
of  the  directions  of  the  grantor,  it  made  no  difference  that  the 
grantor  had  reserved  the  right  of  recalling  the  deed  at  any  time. 

In  Shed  v.  Shed  et  al.,  3  ]^.  II.  432,  where  A.  made  an  instrument 
purporting  to  convey  to  his  two  sons,  B.  and  C,  certain  tracts  of 
land,  with  a  reservation  of  the  use  of  the  land  to  himself  during  his 
life,  and  delivered  the  instrument  to  D.  to  be  delivered  to  B.  and  C. 
as  his  deed,  after  his  decease,  in  case  he  should  not  otherwise  direct; 
and  A.  died  without  giving  any  further  directions  —  it  was  held, 
that  the  instrument  was  to  be  considered  as  the  deed  of  A.  from  the 
first  delivery,  and  that  it  might  operate  as  a  covenant  by  A.  to  stand 
seised  of  the  land  to  his  own  use  during  life,  remainder  to  B.  and  C. 
in  fee.  Richardson,  C.  J.,  in  delivering  the  opinion,  says :  ''  In  the 
case  now  before  us,  the  writing  was  intended  to  effect  a  mere  volun- 
tary disposition  of  the  land ;  and  why  the  grantor  might  not  reserve 
to  himself  a  right  to  revoke  the  writing  if  he  saw  fit,  does  not  readily 
occur  to  our  minds.     If  he  might  legally  deliver  the  writing  abso- 


SECT.    Il]  COOK    V.    BROWN  643 

lutely,  to  take  effect  on  his  decease,  we  do  not  see  why  he  might  not 
deliver  it  condit,ionally,  as  an  escrow,  to  take  effect  upon  his  de- 
cease, in  case  he  did  not  change  his  mind  and  revoke  it.  Being 
the  absohite  owner  of  the  estate,  it  seems  to  us  that  he  had  an  in- 
contestable right  to  deliver  the  instrument,  absolutely  or  condition- 
ally, according  to  his  will  and  pleasure." 

The  decision  in  that  case  would  appear  to  be  in  point  for  the  de- 
fendant, but  we  do  not  find  any  other  case  in  our  own  Reports,  and 
but  one  or  two  in'  others,  which  go  to  that  extent.  On  the  other 
hand,  there  are  many  authorities  which  seem  to  us  to  establish  a 
somewhat  different  rule. 

In  Farher  v.  Bust  in,  2  Foster,  424,  a  grantor  executed  a  deed  and 
delivered  it  to  a  third  person,  with  instructions  to  deliver  it  to  the 
grantee  upon  the  grantor's  death.  He  afterwards  told  the  grantee 
that  he  had  given  him  the  land,  and  directed  him  to  take  possession 
of  it,  which  the  grantee  did,  and  afterwards  remained  in  possession; 
and  it  was  held,  that  it  was  a  question  of  fact  for  the  jury,  upon 
the  evidence,  whether  the  grantor  deposited  the  deed  with  the  third 
person,  to  be  delivered  at  his  decease,  without  reserving  any  con- 
trol over  it  during  his  life;  and  that  the  deed  should  be  considered 
as  delivered  or  not,  as  the  finding  of  the  jury  might  be  on  the  ques- 
tion of  his  intention.  That  is  to  say,  if  he  intended  to  reserve  a 
control  over  the  deed,  it  was  no  delivery;  but  if  he  did  not  so  in- 
tend, it  was  a  delivery. 

In  Doe  V.  KnigM,  5  Barn.  &  Ores.  671,  the  court  told  the  jury 
that  the  question  was  for  them  to  decide  whether  the  delivery  to  the 
depositary  was,  under  all  the  circumstances  of  the  case,  a  departing 
with  the  possession  of  the  deed  and  of  the  power  and  control  over  it 
for  the  benefit  of  the  grantee,  and  to  be  delivered  to  him,  either  in 
the  lifetime  of  the  grantor  or  after  his  death;  or  whether  it  was 
delivered  to  the  depositary,  subject  to  the  future  control  and  dis- 
position of  the  grantor.  If  for  the  latter  purpose,  they  should  find 
for  the  defendant.  The  point  in  that  case  was  distinctly  put ;  the 
defendant  was  seeking  to  defeat  the  deed,  and  the  court  luld  tlic 
validity  of  the  deed  to  depend  upon  the  question,  whether  tlic  (h'- 
livcry  to  the  depositary  was  or  not  subject  to  the  future  control  of 
the  grantor. 

In  Commercial  Bank  v.  Reel-less,  1  Halstead's  Ch.  430,  it  was 
held  that,  to  constitute  the  delivery  of  a  deed,  the  grantor  must  part, 
not  only  with  the  possession  l)Ut  with  the  control  of  it,  and  de- 
prive himself  of  the  right  to  recall  it. 

In  Baldwin  v.  MauUshy,  5  Iredell  505,  it  was  held  thnt  whore  there 
had  been  no  delivery  in  the  lifetime  of  the  grantor,  a  delivery  after 
his  death,  though  at  his  request,  is  void. 

In  Maynard  v.  Maynard,  10  Mass.  456,  the  court,  in  speaking  of 
the  deed  which  was  in  controversy  in  that  case,  and  of  the  grantor, 
say :   "  He  probably  chose  to  consider  it  as  revocable  at  all  times  by 


644  COOK  V.  BROWN  [chap.  X 

himself,  in  case  of  any  important  change  in  his  family  or  estate. 
Whatever  may  have  been  his  views,  however,  he  retained  an  authority 
over  it."  It  is  tlie  retaining  of  the  authority  over  it  that  shows  the 
delivery  to  be  incomplete.  Jackson  v.  Fhvpps,  12  Johns.  421;  Jack- 
son V.  Dunlap,  1  Johns.  Cas.  114;  1  Devereux  Eq.  14;  C.  W  Dudley's 
Eq.  14;  Hooper  v.  Ramshottom,  6  Taunton,  12;  Ilabergham  v.  V in- 
rent,  2  Ves.  Jr.  231. 

All  of  these  authorities  differ  essentially  from  that  of  Shed  v. 
Shed,  and  it  appears  to  us  that  they  are  founded  upon  sounder 
principles. 

The  delivery  of  a  deed  is  either  absolute  or  conditional;  absolute 
when  it  is  to  the  grantee  himself  or  to  some  person  for  him;  when 
the  grantor  parts  with  all  control  over  it,  and  has  no  power  to  re- 
voke or  recall  it ;  conditional,  wdien  the  delivery  is  to  a  third  person, 
to  be  kept  by  him  luitil  some  conditions  are  to  be  performed  by 
the  grantee.  When  the  delivery  is  absolute,  the  estate  passes  at 
once  to  the  grantee;  hut  when  conditional,  the  estate  remains  in 
the  grantor  until  the  condition  is  performed  and  the  deed  delivered 
over  to  the  grantee.  Strictly  speaking,  a  conditional  deed  is  not  a 
deed,  but  an  escrow,  a  mere  writing,  the  effect  of  which  is  to  de- 
pend upon  the  performance  of  the  conditions  by  the  grantee.  If 
they  are  performed  it  becomes  a  deed,  otherwise  it  is  a  mere  nullity. 
Co.  Lit.  36;  Cruise,  title  32,  ch.  2;  2  Black.  Com.  307;  4  Kent's 
Com.  454;  Jaclson  v.  Caflin,  2  Johns.  248;  Carr  v.  Hoxie,  5  Mason, 
60;  Shep.  Touch.  57,  58. 

By  fiction  of  law  an  escrow  is  sometimes  made  to  take  effect  from 
the  first  delivery.  The  relation  back  to  the  first  delivery,  however, 
is  allowed  only  in  cases  of  necessity,  to  avoid  injury  to  the  operation 
of  the  deed  from  events  happening  between  the  first  and  second 
delivery.  4  Kent's  Com.  454;  Perkins  on  Conveyancing,  §  138; 
3  Coke,  30;  3  Black.  Com.  43;  Frost  v.  Bechman,  1  Johns.  Ch.  297; 
5  Co.  84  b. 

A  deed  which  is  put  into  the  hands  of  a  third  person,  to  be  delivered 
to  the  grantee  on  the  happening  of  some  future  event,  but  where  no 
conditions  are  to  be  performed,  is  not  an  escrow  or  conditional  deed. 
Its  delivery  is  not  dependent  upon  any  condition  to  be  performed, 
but  it  is  a  valid  deed  from  the  beginning,  and  the  holder  is  but  a 
trustee  or  agent  for  the  grantee.  In  such  a  case  the  grantor  has 
parted  with  all  control  over  the  deed.  Perkins,  §§  143,  144;  6  Mod. 
217;  Foster  v.  Mansfield,  3  Met.  412;  4  Kent's  Com.  455;  Stilhuell 
V.  Huhhard,  20  Wendell,  44. 

But  so  long  as  a  deed  is  within  the  control  and  subject  to  the 
authority  of  the  grantor,  there  is  no  delivery.  And  whether  in  the 
hands  of  a  third  person  or  in  the  desk  of  the  grantor,  is  immaterial, 
since  in  either  case  he  can  destroy  it  at  his  pleasure.  To  make  the 
delivery  good  and  effectual,  the  power  of  dominion  over  the  deed  must 
be  parted  with.     Until  then  the  instrument  passes  nothing;   it  is 


SECT.    Ilj  COOK    V.    BROWN  645 

merely  ambulatory,  and  gives  no  title.  It  is  nothing  more  tlian  a 
Avill  defectively  executed,  and  is  void  under  the  statute.  Rev.  Stat, 
chap.  156,  §  6;  Hahergham  v.  Vincent,  2  Ves.  Jr.  231;  Powell  on 
Dev.  13 ;  1  Rob.  on  Wills,  59 ;  4  Bro.  Ch.  353 ;  Rob.  on  Frauds,  337. 

The  case  of  Hahergham  v.  Vincent  was  that  of  a  deed,  to  take 
effect  by  way  of  appointment,  after  the  death  of  the  party.  The 
subject  Avas  elaborately  discussed  and  fully  considered  by  the  Chan- 
cellor and  Justices  Wilson  and  Buller.  In  the  course  of  the  dis- 
cussion, Buller  says :  "  A  deed  must  take  place  upon  its  execution 
or  not  at  all.  It  is  not  necessary  for  a  deed  to  convey  an  immediate 
interest  in  possession,  but  it  must  take  place  as  passing  that  interest, 
to  be  conveyed  at  the  execution,  but  a  will  is  quite  the  reverse." 
And,  after  examining  the  various  authorities  upon  the  point,  he 
adds:  "These  cases  have  established  that  an  instrument  in  any 
form,  whether  a  deed  poll  or  indenture,  if  the  obvious  purpose  is 
not  to  take  place  till  after  the  death  of  the  person  making  it,  shall 
operate  as  a  will.  The  cases  for  that  are  both  at  law  and  in  equity, 
and  in  one  of  them  there  were  express  words  of  immediate  grant, 
and  a  consideration  to  support  it  as  a  grant;  hut  as  upon  the  whole 
the  intention  was  that  it  should  have  a  future  operation  after  death, 
it  was  considered  as  a  will."  And  the  court  all  hold,  tluit  the  instru- 
ment then  under  consideration,  though  called  a  deed,  though  in 
form  a  deed,  was  in  its  nature  testamentary,  and  being  attested  by 
only  two  witnesses,  could  not  pass  the  freehold  estate  contrary  to 
the  provisions  of  the  Statute. 

Again,  delivery  of  a  deed  is  as  essential  to  pass  an  estate  as  the 
signing,  and  so  long  as  the  grantor  retains  the  legal  control  of  the 
instrument,  the  title  cannot  pass  any  more  than  if  he  had  not  signed 
the  deed.  A  deed  may  be  signed  by  a  third  person  by  virtue  of  a 
power-of-attorney,  duly  executed,  and  so  may  it  be  delivered  to  a 
third  person,  to  be  delivered  to  the  grantee.  But  the  authority  in 
such  cases  must  be  executed  during  the  life  of  the  grantor,  otherwise 
it  "  availeth  nothing,"  for  no  man  can  create  an  authority  which 
shall  survive  him.  After  his  decease  the  right  "  is  forthwith  in  the 
heir."  Lit.  §  66;  Willes,  105;  Co.  Lit.  52  b.  There  must  be  a 
time  when  the  grantor  parts  with  his  dominion  over  the  deed,  else 
it  can  never  have  been  delivered.  So  long  as  it  is  in  the  hands  of  a 
depositary,  subject  to  be  recalled  by  the  grantor  at  any  time,  the 
grantee  has  no  right  to  it,  and  can  acquire  none;  and  if  the  grantor 
dies  without  parting  with  his  control  over  the  deed,  it  has  not  been 
delivered  during  his  life,  and  after  his  decease  no  one  can  have  the 
power  to  deliver  it.  The  depositary  must  have  had  such  a  dominion 
over  the  deed  during  the  lifetime  of  the  grantor  as  the  latter  could 
not  interfere  with,  in  order  to  have  any  control  over  it  after  his 
decease. 

We  think  the  instructions  of  the  c.ourt  below  were  correct;  and 
that  if  the  grantor,  until  her  death,  reserved  the  right  to  recall  the 
deed  from  the  hands  of  the  depositary,  there  was  no  delivery. 


646  COOK  V.  BROWN  [chap.  X 

The  law  of  the  case  is  not  changed  by  treating  this  instrument 
as  a  deed  of  bargain  and  sale,  or  by  way  of  covenant  to  stand  seised 
for  uses,  as  contended  by  the  defendant's  counsel.  The  Statute  of 
Uses,  27  Henry  VIII.,  has  been  adopted  in  this  State,  and  a  freehold 
estate  in  futuro  may  be  thus  conveyed.  French  v.  French,  3  jNT.  H. 
234;  Bell  v.  Scammon,  15  N".  H.  381.  This  instrument  may  perhaps 
be  regarded  either  as  a  deed  of  bargain  and  sale,  or  as  a  covenant  to 
stand  seised  for  uses.  A  bargain  and  sale  requires  a  pecuniary  con- 
sideration. 4  Cruise,  110;  Jackson  v.  Fishe,  10  Johns.  456;  and  a 
conveyance  to  stand  seised  for  uses  requires  the  consideration  of 
blood  or  marriage.  4  Cruise  120;  4  Kent's  Com.  493;  Rex  v.  Scam- 
monden,  3  Term  474;  Underwood  v.  Campbell,  14  N".  H.  393.  This 
instrument  had  expressed  in  it  a  small  pecuniary  consideration,  and 
the  evidence  would  seem  also  to  show  a  sufficient  relationship  upon 
which  to  found  a  deed  to  stand  seised  for  uses.  But  delivery  is  as 
essential  to  the  valid  operation  of  an  instrument  of  this  kind  as  to 
one  conveying  the  estate  immediately;  and  the  jury  having  found 
that  this  deed  was  never  delivered,  a  verdict  for  the  plaintiff  followed 
as  a  necessary  consequence. 

If  the  owner  of  land  desires  to  convey  the  same,  but  not  to  have 
his  deed  take  effect  until  his  decease,  he  can  rhake  a  reservation  of 
a  life  estate  in  the  deed ;  or  it  may  be  done  by  the  absolute  delivery 
of  the  deed  to  a  third  person,  to  be  passed  to  the  grantee  upon  the 
decease  of  the  grantor;  the  holder  in  such  case  being  a  trustee  for 
the  grantee.  But  if  he  wishes  to  retain  the  power  of  changing  the 
disposition  of  the  property  at  his  pleasure,  that  can  only  be  properly 
effected  by  will.  So  long  as  he  retains  the  instrument,  whether  in 
the  form  of  a  deed  or  will,  in  his  power,  the  property  is  his. 

The  motion  in  arrest  of  judgment  cannot  prevail.  The  count  was 
Buffieient  after  verdict. 

The  verdict  having  been  returned  for  the  plaintiff,  and  the  rulings 
and  instructions  to  which  the  defendant  excepted  having  been  sus- 
tained, it  becomes  unnecessary  to  consider  the  exceptions  which  were 
taken  by  the  plaintiff,  and  there  must  be 

Judgtnent  on  the  verdict.^ 

1  See  Culver  v.  Carroll,  175  Ala.  469;  Whitlenbrock  v.  Cass,  110  Cal.  1; 
Kenney  v.  Parks,  125  Cal.  146;  WcUhorn  v.  Weaver,  17  Ga.  267;  Stevens 
V.  Stevens,  256  111.  140;  Deitz  v.  Deitz,  295  111.  552;  Osborne  v.  Eslinger,  155 
Ind.  351;  Kirhy  v.  Hulette.  174  Ky.  257;  Carey  v.  Dennis,  13  Md.  1;  Taft 
V.  Taft,  59  Mich.  185;  Saltzsieder  v.  Saltzsieder,  219  N.  Y.  523;  Fortune  v. 
Hunt,  149  N.  C.  358;  Huddleston  v.  Hardy,  164  N.  C.  210;  Campbell  v. 
Thomas,  42  Wis.  437;  Williams  v.  Daubner,  103  Wis.  521;  Kittoe  v.  Willey, 
121  Wis.  548. 

But  compare  Lippold  v.  Lippold,  112  Iowa  134;  Daggett  v.  Simonds,  173 
Mass.  340;  Worth  v.  Case,  42  N.  Y.  362;  Henry  v.  Phillips,  105  Tex.  459. 


SECT.    II]  SCHrRTZ    V.    COLVIN  647 

SCHURTZ,  Administrator  v.  COLVIX  et  Al. 
55  Ohio  St.  274.     1896. 

MiNSHALL,  J.^  There  can  be  no  question  but  that  James  E.  Colvin 
waived  his  lien  as  a  vendor  by  taking  a  mortgage  on  the  granted 
premises  and  other  lands  of  the  grantee,  to  secure  the  purchase 
money.  Such  is  the  settled  law  of  this  state.  The  court's  conclu- 
sion of  law  as  to  this  is  correct,  and  not  now  questioned  by  the  de- 
fendant in  error.  So  that  the  only  question  here  presented,  is  as  to 
whether  it  erred  in  its  second  conclusion,  that,  ui)on  the  facts  found, 
the  mortgage  of  James  E.  Colvin,  being  subsequent  in  point  of  time, 
is  superior  in  equity  to  the  Schurtz  mortgage.  Priority  is  claimed 
on  the  ground  that  at  the  time  the  Schurtz  mortgage  was  taken, 
James  E.  Colvin  held  the  legal  title  to  his  interest  in  the  premises, 
subject,  however,  to  a  legal  obligation  to  convey  to  James  Colvin 
as  purchaser,  on  his  paying  tlie  purchase  money  or  securing  it  to  be 
paid.  If  the  facts  found  will  bear  this  simple  construction,  then 
there  can  be  no  question  as  to  the  correctness  of  the  court's  con- 
clusion of  law  thereon.  In  such  case  the  legal  title  of  James  E. 
Colvin  would  have  been  notice  to  the  world  of  his  rights  in  the 
property;  and  no  one  could  have  acquired  an  interest  in  it  superior 
to  his  by  mortgage  or  otherwise.  The  question,  however,  is  whether 
the  facts  as  found  will  bear  this  construction  as  between  James  E. 
Colvin  and  the  Schurtzs.  James  E.  Colvin  had  by  a  verbal  agree- 
ment made  in  1884,  sold  his  interest  in  the  premises  to  James  Col- 
vin, who  went  into  possession  under  the  agreement  and  was  in  pos- 
session at  the  time  the  Schurtz  loan  was  made.  Some  time  before 
the  making  of  the  Schurtz  mortgage,  James  E.  Colvin  with  his  co- 
tenant,  Silas  H.  Colvin,  executed  a  deed  for  the  land  to  James 
( 'olvin,  the  purchaser,  and  placed  it  in  the  hands  of  a  third  person, 
Howard  Colvin,  to  be  delivered  when  the  purchase  money  was  paid 
or  secured  by  mortgage.  Afterward,  for  the  purpose  of  enabling 
James  Colvin  to  obtain  a  loan  of  money  on  the  land,  Howard  de- 
livered the  deed  to  him  that  he  might  obtain  a  description  of  tlie 
premises  and  exhibit  it  as  evidence  of  his  title.  The  facts  found 
hear  this  construction  and  none  other.  It  is  true  that  from  the 
facts  found  it  was  not  to  be  regarded  as  delivered.  But  the  law 
.  lias  always  attached  much  importance  to  an  overt  act.  It  contra- 
venes its  spirit  to  allow  that  an  act  may  be  done  with  an  intention 
contrary  to  the  act  itself.  And  whilst,  as  between  parties,  the  in- 
tention '^nay  be  shown,  it  seldom  permits  this  to  be  done,  where 
to  do  so  would  work  a  fraud  on  innocent  third  persons.  Here, 
whilst  James  Colvin  was  in  possession  of  the  land  and  of  a  deed  to 
it  by  James  E.  Colvin,  of  whom  he  had  purchased,  the  Schurtzs,  on 

1  The  opinion  only  i.<:  printed. 


648  SCHURTZ    V.    COLVIN  [CHAP.   X 

the  faitli  of  these  appearances,  loaned  him  $6,500,  and  took  a  mort- 
gage on  the  land  to  secure  its  payment;  and,  as  the  court  expressly 
finds,  without  any  knowledge  that  the  deed  had  ever  been  held  as  an 
escroiv  by  any  one,  and  that  it  was  taken  in  good  faith  without  any 
knowledge  that  James  E.  Colvin  had  or  claimed  any  interest  in  or 
lien  on  the  land. 

It  would  seem  on  the  plainest  principles  of  justice,  that  under 
these  circumstances  James  E.  Colvin,  as  against  the  owner  of  the 
Schurtz  mortgage,  should  not  be  heard  to  say  that  the  deed  had  not 
in  fact  been  delivered  at  the  time  the  mortgage  was  made,  and  that 
his  equity  is  superior  to  it.  He  trusted  Howard  with  the  deed  to  be 
delivered  when  the  conditions  had  been  performed.  Howard  violated 
his  trust.  He  delivered  it  to  the  grantee  that  the  latter  might  obtain 
a  loan  on  the  land  by  exhibiting  it  as  evidence  of  his  title.  The  loan 
was  so  obtained  of  persons  who  had  no  knowledge  of  the  facts  and 
were  entirely  innocent  of  any  fraud  in  the  matter.  Who  then  should 
suffer  the  loss?  It  may  be  regarded  as  one  of  the  settled  maxims  of 
the  law,  that  where  one  of  two  innocent  persons  must  suffer  from 
the  wrongful  act  of  another,  he  must  bear  the  loss  who  placed  it  in 
the  power  of  the  person  as  his  agent  to  commit  the  wrong.  Or,  more 
tersely,  he  who  trusts  most  ought  to  suffer  most.  And  it  would 
seem,  that  the  rights  of  the  parties  in  this  case  should  be  governed 
by  this  principle,  unless  there  is  some  rigid  exception  established  by 
the  decessions  [decisio;is?],  which  forbids  its  application  where  a 
deed  is  delivered  in  escrow. 

Before  considering  this  question,  it  may  be  well  to  note  that  no 
importance  can  be  attached  to  the  fact  that  the  deed,  on  the  faith  of 
which  the  loan  was  made,  had  not  yet  been  recorded.  A  deed  on 
delivery  passes  title  to  the  land  whether  recorded  or  not.  It  takes 
effect  on  delivery.  The  object  of  recording  a  deed  is  to  give  notice 
to  third  persons,  not  to  perfect  it  as  a  muniment  of  title.  Where  not 
recorded  it  will  be  treated  as  a  fraud  against  third  persons  dealing 
with  the  land  without  notice  of  its  existence.  Hence,  the  first  deed, 
if  delivered,  having  been  duly  executed,  passed  the  title  to  James 
Colvin.  Recording  it  would  have  added  nothing  to  its  effect  as  a 
deed;  and  the  failure  to  record  it  in  no  way  influenced  the  conduct 
of  any  of  the  parties  to  the  suit. 

There  are  some  cases  which  seem  to  hold  that,  where  a  deed  is 
delivered  as  an  escrow  to  a  third  person  to  be  delivered  on  the  per- 
formance of  certain  conditions,  no  title  passes  if  delivered  without 
the  conditions  being  performed;  and  that  this  is  so  as  against  an 
innocent  purchaser  from  the  vendee.  Everts  v.  Agnes,  6  Wis.  463,  is 
such  a  case.  The  argument  there  is  that  no  title  passes  by  deed 
without  delivery;  that  where  a  deed  is  delivered  by  one  who  holds 
it  as  an  escroiv,  contrary  to  the  vendor's  instructions,  there  is  no 
delivery,  and  consequently  an  innocent  purchaser  acquires  no  title. 
To  the  objection  that  if  this  be  true  there  is  no  safety  for  purchasers, 


SECT.    Il]  SCHURTZ    V.    COLVIN  649 

the  court  said  that  if  it  be  not  true,  tliere  is  none  for  vendors.  This 
seems  to  be  a  misconception  of  the  real  situation  of  the  parties.  A 
vendor  may  protect  himself.  He  may  either  retain  the  deed  until 
the  vendee  pays  the  money  or  select  a  faithful  person  to  hold  and 
deliver  it  according  to  his  instructions.  If  he  selects  an  unfaithful 
person,  he  should  suffer  the  loss  from  a  wrongful  delivery,  rather 
than  an  innocent  purchaser  without  knowledge  of  the  facts.  In 
purchasing  land,  no  one,  in  the  absence  of  anything  that  might 
awaken  suspicion,  is  required,  by  any  rule  of  diligence  to  inquire  of 
a  person  with  whom  he  deals,  whether  his  deed  had  been  duly  de- 
livered. Where  a  deed  is  found  in  the  grantee's  hands,  a  delivery 
and  acceptance  is  always  presumed.  ITa-sA.  Real  Property,  5th  Ed., 
312,  pi.  31.  The  fact  that  under  any  other  rule  "no  purchaser  is 
safe,"  had  a  controlling  influence  with  the  court  in  Blight  v.  Schenck, 
10  Penna.  St.  285,  292.  In  this  case  the  question  was  whether  a 
deed  had  been  delivered,  the  defendant  being  an  innocent  purchaser 
from  the  vendee  of  the  plaintiff.  In  discussing  the  case  the  court 
used  this  language:  "Here  Curtis,  who,  it  is  alleged,  delivered  the 
deed  contrary  to  his  instructions,  was  tlie  agent  of  the  grantor.  If 
a  man  employs  an  incompetent  or  unfaitiiful  agent,  he  is  the  cause 
of  the  loss  so  far  as  an  innocent  purchaser  is  concerned,  and  he 
ought  to  bear  it,  except  as  against  the  party  who  may  be  equally 
negligent  in  omitting  to  inform  himself  of  the  extent  of  the  author- 
ity or  may  commit  a  \\Tong  by  acting  knowingly  contrary  thereto." 
And  the  case  was  disposed  of  on  this  principle. 

The  case  on  which  most  reliance  is  placed  by  the  defendant  in 
error,  is  that  of  Ogden  v.  Ogden,  4  Ohio  St.  182.  The  facts  are 
somewhat  complicated.  It  seems  to  have  grown  out  of  an  agreement 
for  an  excliange  of  lots  between  two  of  the  parties,  each  being  the 
equitable  owner  of  his  lot.  The  deed  for  the  lot  of  one  of  them, 
David  Ogden,  was  to  be  delivered  by  the  legal  owner  to  the  other 
on  his  performing  certain  conditions,  and  was  delivered  to  a  third 
person  to  be  delivered  on  the  ])erfornuince  of  the  conditions.  It  was 
delivered  without  the  conditions  being  performed;  and  was  then 
mortgaged  by  the  grantee  to  the  defendants,  Watson  and  Stroh,  who 
claimed  to  be  innocent  purchasers  for  value.  But  it  was  charged  in 
tli(^  bill  that  they  took  their  mortgages  with  notice  and  to  cheat  and 
defraud  the  complainant;  and  it  does  not  distinctly  appear  whether 
this  was  true  or  not.  From  the  reasoning  of  the  court  it  would  seem 
that  the  deed  had  been  obtained  from  the  party  holding  it  in  some 
surreptitious  nianiiei'.  It  is  first  conceded  "that  if  David  reposed 
confiidence  in  (lilhert,  and  he  violated  that  confidence  and  delivered 
the  deed,  and  loss  is  to  fall  on  either  David  or  the  mortgagees,  that 
David  should  sustain  that  loss,  and  not  tlie  innocent  mortgagees." 
Instances  are  then  given  in  whicli  the  rule  would  be  otherwise  —  an 
innocent  ])urclinser  from  the  l)ailee  of  a  horse,  or  of  stolen  property, 
or  from  one   wlio   li;i(I   cither  stolen   or   siiiTeptitionsiy   olilained   his 


650  SCHURTZ    V.    COLVIN  [CHAP.   X 

deed.  There  is  no  room  for  doubt  in  either  of  these  cases.  But  the 
court  then  observes  that.  "  If  the  owner  of  land  makes  a  deed  pur- 
porting to  convey  his  land  to  any  one,  and  such  person  by  fraud  or 
otherwise  procures  the  owner  to  deliver  the  deed  to  him,  a  bona 
fide  purchaser  from  such  fraudulent  grantee  without  notice  of  the 
fraud,  might  acquire  title  to  the  land."  This,  we  think,  is  equally 
clear;  but,  unless  the  deed  in  the  ca§e  had  been  stolen  or  surrepti- 
tiously obtained,  or  the  mortgagees  were  guilty  of  the  fraud  charged, 
then,  on  the  reasoning  of  the  court,  the  decree  should  have  been  in 
their  favor.  If  the  case  is  to  be  understood  as  holding  differently, 
then  it  is  not  in  accord  with  the  later  decision  in  Resor  v.  RaiU 
road  Company,  17  Ohio  St.  139.  Here  the  owner  of  a  tract  of  land 
contracted  to  sell  it  to  the  company,  but  refused  to  deliver  the  deed 
until  paid.  An  agreement  was  then  made  by  which  the  deed  was 
placed  in  the  hands  of  the  president,  but  it  was  not  to  be  considered 
delivered  until  payment  had  been  complied  with,  and  the  company 
went  into  possession.  The  president  wrongfully  placed  the  deed  on 
record,  and  the  company  then  mortgaged  its  entire  property  to  secure 
an  issue  of  bonds.  The  court  held  the  bond-owners  to  be  innocent 
purchasers,  and  that  the  plaintiff  was  estopped  from  setting  up  his 
claim  as  against  them.  It  might  be  claimed  that  the  delivery  by 
Resor  was  to  the  purchaser,  the  company;  and  that  a  deed  cannot  be 
delivered  as  an  escrow  to  the  vendee.  The  latter  statement  is  true. 
But  as  a  matter  of  fact  it  was  delivered  to  the  president  of  the  com- 
pany and  not  to  the  company  itself.  There  is  no  reason  why  the 
president  could  not  have  held  it  as  an  escrow,  and  under  the  agree- 
ment, must  be  regarded  as  having  so  held  it.  Railroad  Co.  v.  Iliif,  13 
Ohio  St.  235;  Wafl-im  v.  Nash,  L.  R.,  20  Eq.,  262;  Ins.  Co.  v. 
Cole,  4  Fla.  359.  The  plaintiff  trusted  the  president  to  hold  the  deed, 
and  it  was  his  wrongful  act  that  disappointed  him. 

The  supreme  court  of  Indiana  is  a  well-considered  case,  Quich  v. 
MUligan,  108  Ind.  419,  the  facts  of  which  are  very  similar  to  the 
case  before  us,  held  that  where  a  deed  is  delivered  to  a  third  person 
to  be  delivered  the  grantee,  who  is  already  in  possssion  of  the  land, 
on  payment  of  the  purchase  money,  and  is  delivered  without  the  con- 
dition being  performed  that  the  vendor  is  estopped  as  against  an 
innocent  purchaser  to  set  up  his  title.  See  also,  and  to  the  same 
effect,  the  following  cases:  Bailey  v.  Crim,  9  Biss.  95;  Haven  v. 
Kramer,  41  Iowa  382;  Blight  v.  SchencJc,  10  Penna.  St.  285. 

It  is  the  general,  if  not  universal,  rule  of  the  courts,  to  protect  the 
innocent  purchaser  of  property  for  value,  against  such  vices  in  the 
title  of  their  vendors,  as  result  from  fraud  practised  by  them  in  ac- 
quiring the  property.  For  in  all  such  cases  the  party  complaining 
is  found  to  have  been  guilty  of  some  negligence  in  his  dealings,  or  to 
have  trusted  some  agent  who  has  disappointed  his  confidence  and  is 
more  to  blame  for  the  consequences  than  the  innocent  purchaser,  so 
that  his  equity  is  inferior  to  that  of  such  purchaser.     Hence,  it  is. 


SECT.    Il]  SCHURTZ    V.    COLVIN  651 

that  the  innocent  purchaser  for  vahie  from  a  fraudulent  grantee,  is 
ahvays  protected  in  his  title  as  against  the  equity  of  the  wronged 
grantor.  In  Hoffman  v.  Strohecker,  7  Wats.  86,  where  a  sale  has 
been  made  under  execution  upon  a  satisfied  judgment,  the  satisfac- 
tion not  appearing  of  record,  an  innocent  purchaser  of  the  person 
who  purchased  at  the  sale  was  protected  in  his  title,  although  the 
purchaser  at  the  sale  had  knowledge  of  the  facts,  and  acquired  no 
title.  A  similar  holding  had  been  made  by  the  same  court  in  Price 
V.  Junkins,  4  Wats.  85,  and  in  Fetterman  v.  Murphy,  Id.  424.  In 
the  case  of  Price  v.  Junkins  it  is  said  "An  innocent  purchaser  of  the 
legal  title,  without  notice  of  trust  or  fraud  is  peculiarly  protected 
in  equity,  and  chancery  never  lends  its  aid  to  enforce  a  claim  for 
the  land  against  him." 

Most  of  the  cases  cited  and  reliecl  on  by  the  defeiulant  are  not  in 
])oint.  Where  the  grantee  wrongfully  procures  the  holder  of  a  deed 
as  an  escrow  to  deliver  it  to  him,  he  acquires  no  title,  or  at  least  a 
voidable  one;  but  this  is  a  very  different  case  from  where  a  third 
person  without  notice,  afterward  and  while  the  grantee  is  in  posses- 
sion, deals  with  him  in  good  faith  as  owner.  Again,  it  may  be  con- 
ceded that  the  delivery  of  a  deed  by  one  who  simply  holds  it  as  a  de- 
positary, transfers  no  title;  but  if  he  holds  it  as  an  escrow,  with 
power. to  deliver  it  on  certain  conditions,  a  delivery,  though  wrongful, 
is  not  in  excess  of  his  authority  for,  in  such  case,  the  act  is  within 
his  authority  and  binds  the  principal  as  against  an  innocent  party. 
And  so  a  deed  held  in  escrow,  delivered  after  the  death  of  the  princi- 
pal, passes  no  title.  It  will  readily  a])pear,  from  reasons  already 
given,  that  such  cases  are  without  ap])li('ation  to  the  case  under  re- 
view. Here  it  will  be  conceded  tluit  as  between  the  grantor  and  the 
grantee  the  latter  took  no  title,  because  delivered  by  Howard  con- 
trary to  his  instruction.  But  the  plaintiff  relies  on  the  fact  that,  as 
he  had  no  knowledge  that  the  deed  had  ever  been  held  as  an  escrow 
and,  in  good  faith,  loaned  his  money  and  took  a  mortgage  on  the 
land  to  secure  it;  and  that  the  defendant  is  therefore  estopped  from 
setting  up  his  legal  title  as  against  him. 

But  it  is  claimed  that,  as  the  plaintiff  relies  on  an  estoppel,  he 
should  have  ])lea(le(l  it.  This  rule,  however,  only  api^lies  where  the 
]>arty  has  had  ;iii  opportunity  to  do  so.  In  this  case  lie  hml  none 
until  the  evidence  had  been  introduced.  The  defendant,  in  his 
answer  and  cross-petition,  set  up  that  tlic  deed  from  him  had  ])een 
placed  in  escrow  and  wrongfully  delivered  to  the  grantee  and  that 
the  i)laintiff  had  knowledge  of  the  facts.  The  plaintiff  th(Mi  averred 
his  want  of  any  knowledge  or  belief  as  to  the  facts  stated  by  tlir  de- 
fendant and  denied  them.  The  court,  however,  found  that  the  deed 
had  been  delivered  to  Howard  (^olvin  to  be  held  as  an  escrow  and  Avas 
by  him  wrongfully  delivered  to  the  grantee;  but  also  found  that  the 
plaintiff  was  ignorant  of  the  facts,  and  an  innocent  purchaser  for 
value  without  notice.    The  object  of  pleading  is  to  inform  the  oppo- 


652  XENOS    V.    WICKHAM  [CHAP.   X 

site  party  of  the  facts  upon  which  the  pleader  relies  as  the  ground 
of  his  claim  or  defence.  And  here,  when  the  plaintiff  denied  knowl- 
edge of  the  facts  as  pleaded  by  the  defendant,  he  fairly  advised  the 
defendant  that  he  relied  on  an  estoppel,  on  the  ground  of  want  of 
notice,  should  the  facts  as  pleaded  be  made  to  appear  in  the  evidence ; 
for,  that  he  was  a  purchaser  for  value  appeared  from  his  petition, 
which  was  taken  as  true  as  it  was  not  controverted.  Hence  the 
claim  of  the  plainitff  could  in  no  way  surprise  the  defendant  unless 
he  was  ignorant  of  the  law.  The  first  opportunity  the  plaintiff 
had  to  plead  an  estoppel  as  against  James  E.  Colvin,  was  when  the 
facts  were  fully  made  to  appear  in  evidence;  and  he  is  not  therefore 
precluded  from  doing  so  on  the  facts  as  found  by  the  court. 

Judgment  reversed  and  judgment  on  the  facts  for  plaintiff  in  error} 


XENOS  AND  Another  v.  WICKHAM 
L.  R.  2  H.  L.  296.     1866. 

"  Then,  assuming  that  the  intention  really  was  that  the  policy 
should  he  binding  as  soon  as  executed,  and  ishould  be  kept  by  the 
company  as  a  bailee  for  the  assured,  the  question  of  law  arises, 
whether  the  policy  could  in  law  be  operative  until  the  company 
parted  with  the  physical  possession  of  the  deed. 

"  I  can,  on  this  part  of  the  case,  do  little  more  than  state  to  your 
Lordships  my  opinion,  that  no  particular  technical  form  of  words 
or  acts  is  necessary  to  render  an  instrument  the  deed  of  the  party 
sealing  it.  The  mere  affixing  the  seal  does  not  render  it  a  deed; 
but  as  soon  as  there  are  acts  or  words  sufficient  to  show  that  it  is 
intended  by  the  party  to  be  executed  as  his  deed  presently  binding 
on  him,  it  is  sufficient.  The  most  apt  and  expressive  mode  of  indicat- 
ing such  an  intention  is  to  hand  it  over,  saying :  '  I  deliver  this  as  my 
deed ;  '  but  any  other  words  or  acts  that  sufficiently  show  that  it  was 
intended  to  be  finally  executed  will  do  as  well.  And  it  is  clear  on  the 
authorities,  as  well  as  the  reason  of  the  thing,  that  the  deed  is 
binding  on  the  obligor  before  it  comes  into  the  custody  of  the  obligee, 
nay,  before  he  even  knows  of  it;  though,  of  course,  if  he  has  not 
previously  assented  to  the  making  of  the  deed,  the  obligee  may  re- 
fuse it.  In  Butler  and  Baker's  Case,  3  Co.  Eep.  26,  it  is  said :  '  If 
A.  make  an  obligation  to  B.,  and  deliver  it  to  C.  to  the  use  of  B., 
this  is  the  deed  of  A.  presently;  but  if  C.  offers  it  to  B.,  there  B. 

1  See  Baillarge  v.  Clark,  145  Cal.  589;  Maijs  v.  Shields,  117  Ga.  814; 
Quick  V.  Mulligan,  108  Ind.  419;  Havim  v.  Kramer,  41  Iowa  382;  Leonard  v. 
Sfiale,  266  Mo.  123. 

By  the  weight  of  authority  an  innocent  purchaser  from  the  grantee  is 
not  protected.  Cobban  v.  Conklin.  208  F.  R.  231 ;  Smith  v.  South  Roijalton 
Bank,  32  Vt.  341;  and  cases  collected  in  Devlin,  Deeds,  3d  ed.,  §  322. 


SECT.    II ]  BOYD    V.    SLAYBACK  653 

may  refuse  it  in  pais,  and  thereby  the  obligation  will  lose  its  force.' 
I  cannot  perceive  how  it  can  be  said  that  the  delivery  of  the  policy 
to  the  clerks  of  the  defendant,  to  keep  till  the  assured  sent  for  it,  and 
then  to  hand  it  to  their  messenger,  was  not  a  delivery  to  the 
defendant  to  the  use  of  the  assured  There  is  neither  authority  nor 
principle  for  qualifying  the  statement  in  Butler  and  Balcer's  Case, 
by  saying  that  C.  must  not  be  a  servant  of  A.,  though,  of  course,  that 
is  very  material  in  determining  the  question  whether  it  was  '  de- 
livered to  C,  to  B.'s  use,'  which  I  consider  it  to  be,  in  other  words, 
Avhether  it  was  shown  that  it  was  intended  to  be  finally  executed  as 
binding  the  obligor  at  once,  and  to  be  thenceforth  the  property  of 
B."  —  Per  Blackburn,  J.,  L.  R.  2  H.  L.  312.^ 


BOYD  V.  SLAYBACK  et  Al. 
63  Cal.  493.     1883. 

Appeal  from  a  judgment  of  the  Superior  Court  of  San  Diego 
County. 

The  action  was  brought  against  Robert  Taggart,  a  minor,  and 
against  O.  M.  Slayback,  as  administrator  of  the  estate  of  Mary  B. 
Taggart,  and  as  guardian  of  Robert  Taggart,  to  quiet  title  to  cer- 
tain lands  alleged  to  have  been  sold  to  the  plaintiff  by  Mary  B.  Tag- 
gart. The  plaintiff  alleged  that  some  time  subsequent  to  the  exe- 
cution and  delivery  of  the  deeds  to  him,  by  whicTi  the  lands  were 
convej^ed,  they  were  left  at  the  residence  of  Mrs.  Taggart  in  a  tin 
box,  and  that  after  her  death  it  was  discovered  that  the  deeds  had 
been  abstracted.  The  defendant  denied  the  execution  and  delivery. 
The  deeds  were  not  recorded. 

The  other  facts  appear  in  the  opinion  of  the  court. 

Per  Curiam.-  The  judgment  must  be  reversed  for  error  in  the 
charge  to  the  jury.  The  court  below  charged :  "A  grant,  duly  exe- 
cuted, is  presumed  to  have  been  delivered ;  therefore,  if  you  find  from 
the  evidence  that  Mrs'  Taggart  actually  signed  and  acknowledged 
tlie  deeds  in  question,  the  law  will  presume  that  they  were  duly  de- 
livered, and  in  order  to  defeat  this  presumption,  the  party  disputing 
the  delivery  must  show,  by  preponderance  of  proof,  that  there  was 
no  delivery." 

1  And  see  Gulj  Red  Cedar  Co.  v.  Crenshaw,  169  Ala.  606;  Stephens  v. 
Stepheyis,  108  Ark.  53,  57;  Little  v.  Eaton,  267  III.  623;  Moore  v.  Hazclton, 
9  All.  (Mass.)  102;  Ruckman  v.  Ruekman,  32  N.  J.  Eq.  259.  260;  Mitchell  v. 
Ryayi,  3  Ohio  St.  377;  Matson  v.  Johnsoi},  48  Wash.  256;  authorities  collectod 
in  1  Devlin,  Deeds.  3d  cd,  §  262;  2  Tiffany,  Real  Prop.,  2d  ed..  §  461. 

But  compare  Storey  v.  Storey,  214  F.  R.  973  (promissory  notes) ;  Clark 
V.  Creswell,  112  Aid.  339,  342;  Lynch  v.  Lynch,  121  Miss.  752;  Rountree  v. 
Ronnlree,  85  S.  C.  383. 

2  Part  of  the  opinion  relarting  to  other  points  is  omitted. 


654  MAYNARD    V.    MAYNARD  [CHAP.    X 

This  was  error.  A  deed  takes  effect  only  from  the  time  of  its  de- 
livery. Without  delivery  of  a  deed  it  is  void.  No  title  will  pass 
without  delivery.  23  Cal.  528 ;  30  Cal.  208 ;  32  Cal.  610.  It  is  for 
the  party  claiming  under  a  deed  to  prove  its  delivery.  Sometimes 
slight  evidence  will  be  sufficient  to  support  a  finding  of  delivery,  but 
no  legal  presumption  of  delivery  arises  from  the  mere  fact  that  the 
instrument  is  "  signed."  The  acknowledgment  only  proves  that  it 
was  signed. 

Judgment  reversed  and  cause  remanded  for  a  new  trial} 


MAYN"ARD   V.   MAYj^ARD   and  Others 
10  Mass.  456.    1813. 

This  was  a  writ  of  entry  sur  disseisin,  brought  to  recover  posses- 
sion of  a  certain  tract  of  land  in  Marlborough,  wherein  the  demand- 
ant counts  upon  his  own  seisin  within  thirty  years,  and  uj^on  a 
disseisin  by  the  tenants. 

A  trial  was  had  upon  the  general  issue,  at  the  sittings  in  this 
county  after  the  last  October  Term,  before  Parher,  J.,  who  reports 
that  the  demandant's  title  is  unquestioned,  unless  taken  away  by  a 
certain  deed,  now  cancelled,  which  purports  to  convey  the  same  to 
his  son,  Abel  Maynard,  deceased,  under  whom  the  tenants  claim  to 
hold  the  same,  the  said  Nancy  being  the  widow,  and  the  other  tenants 
the  children,  of  the  said  Abel. 

The  deed,  wdiich  purports  to  have  been  made  by  the  demandant, 
for  the  consideration  of  2,000  dollars,  and  contains  the  usual  cove- 
nants of  warranty,  was  made  under  the  following  circumstances.  In 
April,  1810,  Hezekiah  Maynard,  the  demandant,  called  upon  Ben- 
jamin Rice,  Esq.,  who  is  a  subscribing  witness  to  the  execution  of 
the  deed,  and  the  magistrate  before  whom  it  was  acknowledged,  and 
told  him  he  wished  to  make  some  provision  for  his  son  Abel,  and  re- 
quested the  witness  to  write  a  deed  of  the  land,  being  part  of  the  de- 
mandant's farm,  which  is  described  in  the  deed.  This  was  done  by 
the  witness,  who  read  it  to  the  demandant,  and  he  was  satisfied  with 
it.  A  few  days  afterwards,  he  called  on  the  witness,  and  signed, 
sealed,  and  acknowledged  the  deed;  and  he  requested  the  witness  to 
take  it  to  the  register's  office,  and  get  it  recorded.  The  witness  car- 
ried it  to  the  register  accordingly,  procured  it  to  be  recorded,  and, 
in  May  following,  received  it  back.  The  witness  informed  the  de- 
mandant of  this,  who  told  him  it  was  right,  and  requested  him  to  keep 
the  deed  until  it  was  called  for.  Abel,  the  son,  was  never  present 
at  any  of  these  transactions,  nor  did  it  appear  that  he  ever  knew 
of  the  execution  of  the  deed.  About  a  year  afterwards,  Abel  died, 
and,  soon  after  he  was  buried,  the  demandant  called  upon  the  witness 

1  Hawes  v.  Hawes,  177  111.  409 ;  Anderson  v.  Anderson,  126  Ind.  62 ;  Alex- 
ander V.  do  Kernel,  81  Ky.  345.  accord.  See  Fisher  v.  Hall,  41  N.  Y.  416. 
Compare  Baker  v.  Hall,  214  111.  364. 


SECT.    II ]  MAYNARD    V.    MAYNARD  655 

for  the  deed,  wlilcli  was  given  to  him,  he  then  saying  that  he  sup- 
posed he  had  a  right  to  do  as  he  pleased  with  it;  and  then  cut  his 
name  and  seal  from  it.  It  was  proved  that  Abel,  the  son,  lived  upon 
the  farm  with  the  demandant,  his  father,  and  carried  it  on  wdth 
his  labor,  and  supported  his  family  upon  it.  It  was  also  proved,  by 
several  witnesses,  that  the  demandant,  in  conversation  after  the 
execution  of  the  deed,  considered  the  land  as  his  son's  property. 

The  judge  instructed  the  jury  that  there  were  no  facts  proved  in 
the  case  which,  in  law,  could  amount  to  a  delivery  of  the  deed  to 
Abel;  so  tbat  the  conveyance  was  not  perfect,  and  the  demandant 
must  recover  possession.  A  verdict  was  accordingly  returned  for  the 
demandant,  which  the  tenants  moved  might  be  set  aside,  and  a  new 
trial  be  granted. 

Per  Curiam.  It  is  very  clear  that  there  was  no  delivery  of  this 
deed,  so  as  to  give  it  the  effect  of  passing  the  estate  from  the  de- 
mandant to  his  son,  as  whose  Avidow  and  heirs  the  tenants  claim. 
The  act  of  registering  a  deed  does  not  amount  to  a  delivery  of  it; 
there  not  appearing  any  assent  on  the  part  of  the  son,  or  even  any 
knowledge  that  the  deed  had  been  executed  in  his  favor.  A  de- 
livery of  a  deed  duly  executed  and  acknowledged,  to  the  register  of 
deeds,  aided  by  a  subsequent  possession  of  the  deed  by  the  grantee, 
might  be  evidence  of  a  delivery  to  him. 

But  the  facts  in  the  case  at  bar,  testified  by  the  person  who  acted 
as  the  scrivener  and  magistrate,  leave  no  doubt  of  the  intention  of 
the  grantor  ultimately  to  pass  this  land  to  his  son,  but  to  keep  the 
control  over  it  until  he  should  be  more  determined  upon  the  subject. 
He  may  have  chosen  to  place  the  deed,  perfect  as  it  was,  except  as  to 
delivery,  in  the  hands  of  the  witness,  in  lieu  of  a  devise,  to  operate 
after  his  decease;  for  nothing  Avas  wanting  to  its  complete  effect 
but  to  direct  the  witness  to  deliver  it  to  his  son  after  his  own  de- 
cease. He  probably  chose  to  consider  it  as  revocable  at  all  times 
by  himself,  in  case  of  any  important  change  in  his  family  or  estate. 
Whatever  may  have  been  his  views,  however,  he  retained  an  author- 
ity over  it;  and  having  reclaimed  and  cancelled  it,  the  tenants  can 
claim  no  title  under  it. 

Whether  a  creditor  of  his  son  might  not  liave  taken  it  in  satisfac- 
tion of  a  debt,  in  consequence  of  the  credit  given  by  putting  such 
an  apparent  title  upon  record,  and  especially  as  the  son  Avas  in  actual 
possession  of  the  premises,  need  not  noAv  be  determined.  We  are 
satisfied  tliat  tlie  title  never  passed  out  of  the  demandant,  and  that 
he  is  therefore  entitled  to  a  recoveiy.        Judgmeivi  on  the  verdict.^ 

1  Younge  v.  Guilbeau,  3  Wall.  (U.  S.)  636;  Barnes  v.  Barnes,  161  Mass. 
381;  Hogadone  v.  Grange  Mutual  Fire  Insurance  Co.,  133  Mich.  339;  Mc- 
Mahan  v.  Hensley,  101  S.  Iv  (N.  C.)  210.  accord.  Sec  Rowleii  v.  Rowhi/. 
197  S.  W.  (Mo.)  i.52;  Rohhin.^  v.  Ra-<^coe,  120  N.  C.  79;  }fitchcl}  v.  Ri/an.  3 
Ohio  St.  377;  King  v.  Antrim  Lumber  Co..  172  Pac.  (Okl.)  958.  Compare 
Sellers  v.  Rike,  292  III.  468;  Massachusetts.  Gen.  Laws  (1921),  c.  183.  §  5; 
Jackson  v.  Phipps,  12  Johns.  (N.  Y.)  418;  Smith  v.  South  Roydton  Bank, 
32  Vt.  341. 


650  THOMPSON    V.    LEACH  [CHAP.   X 

THOMPSON  V.  LEACH 

3  Lev.  284;  2  Vent.  198.    1690. 

Ejectment  upon  the  demise  of  Charles  Leach,  and  on  Not  Guilty 
and  a  special  verdict,  the  case  was  thus :  Simon  ^  Leach  being  tenant 
for  life,  remainder  to  his  first  son  in  tail,-  remainder  to  Sir  Simon 
Leach  in  tail.  Simon  Leach  makes  a  deed  of  surrender  to  Sir 
Simon  before  the  birth  of  any  son  of  Simon,  and  afterwards  had  a 
son,  viz.  Charles  the  lessor  of  the  plaintifp.  Simon  keeps  the  deed 
of  surrender  in  his  hands,  and  Sir  Simon  had  no  knowledge  of  it 
until  five  years  after  the  said  son's  birth.  But  as  soon  ais  he  had 
notice  of  it,  he  accepted  it^  and  entered  on  the  lands;  after  which 
Simon  dies,  and  Charles  the  son  brings  the  ejectment :  and  whether 
the  contingent  remainder  was.  destroyed  by  this  surrender,  was  the 
question.  And  after  divers  arguments,  Pollexfen^  Chief -Justice, 
Powell  and  Rokesby,  Justices,  held,  that  the  estate  did  not  pass 
by  the  surrender  until  the  acceptance  of  it;  and  for  this  they  relied 
much  on  the  constant  form  of  pleading  surrenders,  wherein  always 
the  precedents  are  not  only  to  plead  the  surrender,  but  also  with  an 
acceptance,  viz.,  that  the  surrenderee  agreed  thereto,  except  one  or 
two  in  Rastal;  and  divers  other  authorities  were  cited  in  the  case 
pro  and  con,  and  that  then  the  surrender  not  taking  effect,  nor  the 
estate  for  life  merged  before  the  birth  of  the  son,  he  had  a  good  title. 
2.  The  said  three  judges  held,  that  the  acceptance  afterwards  should 
not  so  relate  to  the  making  of  the  deed,  as  to  cause  the  estate  to  pass 
ab  initio,  and  so  by  relation  to  make  it  a  surrender  before  the  son's 
birth,  so  as  to  destroy  his  estate;  for  that  would  be  to  make  a  re- 
lation work  to  the  prejudice  of  a  third  person,  and  relations  do 
ahvays  make  acts  good  only  between  the  parties  themselves,  but  not 
to  prejudice  strangers,  as  Co.  3  Rep.,  Butler  and  Baker's  Case.  But 
Justice  Venteis  to  the  contrary  held,  that  the  estate  vested  im- 
mediately by  the  making  the  deed  of  surrender ;  but  to  be  divested 
by  the  surrenderee's  refusal  to  accept  it  afterwards,  but  that  until 
such  refusal  the  estate  was  in  the  surrenderee ;  and  divers  cases  were 
cited  on  that  side  also :  and  he  also  held,  that  if  it  did  not  vest  at  the 
first  by  the  delivery  of  the  deed  of  surrender,  yet  by  the  acceptance 
afterwards  it  should  be  by  relation  a  surrender  from  the  begin- 
ning, and  so  destroy  the  contingent  remainder  to  Charles  the  son 
born  afterwards;  and  this  relation  does  no  wrong  to  a  third  per- 
son, for  Charles  was  not  a  person  in  esse  when  the  surrender  was 
first  made.     But  by  the  opinion  of  the  other  three  judgment  was 

1  Levinz  calls  him  "Nicholas;"  but  the  other  reports  show  that  his 
name  was  "  Simon." 

2  The  other  reports  show  that  the  remainder  was  to  the  first  and  other 
sons  in  tail. 


SECT.    II]  THOMPSON    V.    LEACH  657 

given  for  the  plaintiff,  upon  which  error  was  brought  in  B.  R.  and 
in  Hill.  3  W.  &  M.  the  judgment  given  in  C.  B.  was  affirmed  by  the 
whole  court.  But  afterwards  the  defendant  brought  error  thereof  in 
the  House  of  Peers;  and  in  December,  1692,  on  hearing  of  the  judges 
there,  they  all  coritinuing  in  their  former  opinion  (except  Sir 
RoBEKT  Atkins,  Chief  Baron,  and  then  Speaker  of  the  House  of 
Peers),  the  judgment  was  reversed  by  the  Lords  in  Parliament,  the 
said  Sir  Robert  Atkins  and  Mr.  Justice  Ventris  concurring  with 
them  as  before. 

Levinz,  of  counsel  for  the  defendant. 

[The  dissenting  opinion  of  Ventris,  J.,  in  the  Court  of  Common 
Pleas,  which  was  afterwards  adopted  in  the  House  of  Lords,  is  thus 
given  in  his  report  of  this  case  in  2  Vent.  198.] 

Upon  this  record  the  case  is  no  more  than  thus;  Simon  Loach, 
tenant  for  life,  remainder  to  his  first  son,  remainder  in  tail  to  Sir 
Simon  Leach.  Simon  Leach  before  the  birth  of  that  son  by  deed, 
sealed  and  delivered  to  the  use  of  Sir  Simon  (but  in  his  absence 
and  without  his  notice)  surrenders  his  estate  to  Sir  Simon,  and 
continues  the  possession  until  after  the  birth  of  his  son;  and 
then  Sir  Simon  Leach  agrees  to  the  surrender,  whether  this  surren- 
der shall  be  taken  as  a  good  and  effectual  surrender  before  the  son 
born. 

There  are  two  points  which  liave  been  spoken  to  in  this  case  at 
the  bar. 

First,  whether  by  the  sealing  of  the  deed  of  surrender  the  estate 
immediately  passed  to  Sir  Simon  Leach;  for  then  the  contingent 
remainder  could  not  vest  in  the  after-born  son,  there  being  no  estate 
left  in  Simon  Leach  his  father  to  support  it? 

Secondly,  whether  after  the  assent  of  Sir  Simon  Leach,  though  it 
were  given  after  the  birth  of  the  son,  doth  not  so  relate  as  to  make 
it  a  surrender  from  the  sealing  of  the  deed,  and  thereby  defeat  the 
remainder  which  before  such  assent  was  vested  in  the  son? 

I  think  these  points  include  all  that  is  material  in  the  case,  and  I 
shall  speak  to  the  second  point,  because  I  would  rid  it  out  of  the 
case.  For  as  to  that  point  I  conceive,  that  if  it  be  admitted,  that 
the  estate  for  life  continued  in  Simon  Leach  till  the  assent  of  Sir 
Simon,  that  the  remainder  being  vested  in  Charles  the  second  son 
before  such  assent,  there  can  be  no  relation  that  shall  divest  it. 

I  do  not  go  upon  the  general  rule,  that  relations  shall  not  do 
wrong  to  strangers. 

'T  is  true,  relations  are  fictions  in  law,  which  are  always  accom- 
panied with  equity. 

But  't  is  as  true,  that  there  is  sometimes  loss  and  damage  to  third 
persons  consequent  upon  them;  but  then  'tis  what  the  law  calls 
damnum  absque  injuria,  wliich  is  a  known  and  stated  difference  in 
the  law,  as  my  Brother. Pcmberton  urged  it.  But  I  think  there  needs 
nothing  of  that  to  be  considered  in  this  point. 


658  THOMPSON    V.    LEACH  [CHAP.   X 

But  the  reason  whicli  I  go  upon  is,  that  the  relation  here,  let  it 
be  never  so  strong,  cannot  hurt  or  disturb  the  remainder  in  Charles 
Leach  in  this  case;  for  that  the  remainder  is  in  him  by  a  title  ante- 
cedent and  paramount  to  the  deed  of  surrender,  to  which  the  assent 
of  Sir  Simon  Leach  relates,  so  that  it  plainly  overreaches  the 
relation. 

If  an  estate  in  remainder,  or  otherwise,  ariseth  to  one  upon  a  con- 
tingency or  a  power  reserved  upon  a  fine  or  feoffment  to  uses,  when 
the  estate  is  once  raised  or  vested  it  relates  to  the  fine  or  feoffment, 
as  if  it  were  immediately  limited  thereupon,  1  Co.  133,  156.  So  this 
remainder,  when  vested  in  Charles,  he  is  in  immediately  by  the  will, 
and  out  of  danger  of  his  remainder  being  divested  by  any  act  done 
since,  as  the  surrender  is. 

I  will  put  one  case,  I  think  full  to  this  matter,  and  so  dismiss  this 
point. 

It  cannot  be  denied,  but  that  there  is  as  strong  a  relation  upon  a 
disagreement  to  an  estate,  as  upon  an  agreement,  where  the  estate 
was  conveyed  without  the  notice  of  him  that  afterwards  agrees 
or  disagrees;  if  the  husband  discontinues  the  wife's  estate,  and  then 
the  discontinuee  conveys  the  estate  back  to  the  wife  in  the  absence 
of  the  husband,  who  (as  soon  as  he  knows  of  it)  disagrees  to  the 
estate,  this  shall  not  take  away  the  remitter  which  the  law  brought 
upon  the  first  taking  the  estate  from  the  discontinuee.  And  so  is 
Lit.  cap.  Remitter,  Co.  11  Inst.  356  b.  The  true  reason  is,  because 
she  is  in  of  a  title  paramount  to  the  conveyance  to  which  the  dis- 
agreement relates,  though  that  indeed  was  the  foundation  of  the 
remitter,  which  by  the  disagreement  might  seem  to  be  avoided.  This 
therefore  I  take  to  be  a  stronger  case  than  that  at  the  bar :  so  that 
if  there  were  no  surrender  before  the  birth  of  Charles  the  son,  there 
can  be  none  after  by  any  construction  of  law;  for  that  would  be  in 
avoidance  of  an  estate  settled  by  a  title  antecedent  to  such  surren- 
der, whereas  relations  are  to  avoid  mesne  acts;  and  I  believe  there 
can  be  no  case  put  upon  relations  that  go  any  further,  and  it  would 
be  against  all  reason  if  it  should  be  otherwise. 

But  as  to  the  first  point,  I  am  of  opinion,  that  upon  the  making 
of  the  deed  of  surrender,  the  freehold  and  estate  of  Simon  Leach 
did  immediately  vest  in  Sir  Simon,  before  he  had  notice,  or  gave  any 
express  consent  to  it;  and  so  it  was  a  surrender  before  Charles  was 
born,  and  then  the  contingent  remainder  could  never  vest  in  him, 
there  being  no  particular  estate  to  support  it. 

A  surrender  is  a  particular  sort  of  conveyance  that  works  by  the 
common  law.  And  it  has  been  agreed,  and  I  think  I  can  make  it 
plainly  appear,  that  conveyances  at  the  common  law,  do  immediately 
(upon  the  execution  of  them  on  the  grantor's  part)  divest  the  estate 
out  of  him,  and  put  it  in  the  party  to  whom  such  conveyance  is 
made,  though  in  his  absence,  or  without  his  notice,  till  some  disagree- 
ment to  such  estate  appears.    I  speak  of  conveyances  at  the  common 


SECT.    Il]  THOMPSON    V.    LEACH  659 

<< 
law;  for  I  shall  say  nothing  of  conveyances*  that  work  upon  the 
Statutes  of  Uses,  or  of  conveyances  by  custom,  as  surrenders  of  copy- 
holds, or  the  like,  as  being  guided  by  the  particular  penning  of 
Statutes,  and  by  custom  and  usage,  and  matters  altogether  foreign 
to  the  case  in  question. 

In  conveyances  that  are  by  the  common  law,  sometimes  a  deed  is 
sufficient  (and  in  surrenders  sometimes  words  without  a  deed) 
without  further  circumstance  or  ceremony;  and  sometimes  a  further 
act  is  requisite  to  give  them  effect,  as  livery  of  seisin,  attornment, 
and  sometimes  entry  of  the  party,  as  in  case  of  exchanges;  and  as 
well  in  those  conveyances  that  require  a  deed  only,  as  those  which  re- 
quire some  further  act  to  perfect  them,  so  soon  as  they  are  executed 
on  the  grantor's  part,  they  immediately  pass  the  estate.  In  case 
of  a  deed  of  feoffment  to  divers  persons,  and  livery  made  to  one 
feoffee  in  the  absence  of  the  rest,  the  estate  vests  in  them  all  till 
dissent,  2  Leon.  23,  Muttons  Case.  And  so  223,  an  estate  made  to 
a  feme  covert  by  livery,  vests  in  her  before  any  agreement  of  the 
husband,  Co.  1  Inst.  356  a.  So  of  a  grant  of  a  reversion  after 
attornment  of  the  lessee,  passeth  the  freehold  by  the  deed,  Co.  1 
Inst.  49  a.  Lit.  sect.  66.  In  case  of  a  lease,  the  lessee  hath  right 
immediately  to  have  the  tenements  by  force  of  the  lease.  So  in 
the  case  of  limitation  of  remainders  and  of  devises  (which  though 
a  conveyance  introduced  by  the  Statute,  yet  operates  according  to 
the  common  law),  the  freehold  paeseth  to  the  devisee  before  notice 
or  assent.  I  do  not  cite  authorities,  which  are  plentiful  enough  in 
these  matters,  because  they  that  have  argued  for  the  plaintiff  have 
in  a  manner  agreed,  that  in  conveyances  at  the  common  law,  gen- 
erally the  estate  passeth  to  the  party,  till  he  divests  it  by  some 
disagreement. 

But  't  is  objected,  that  in  case  of  surrenders,  an  express  assent 
of  the  surrenderee  is  a  circumstance  requisite;  as  attornment  to  a 
grant  of  a  reversion,  livery  to  a  feoffment,  or  execution  by  entry, 
in  case  of  an  exchange. 

To  which  I  answer,  that  an  assent  is  not  only  a  circumstance,  but 
'tis  essential  to  all  conveyances;  for  they  are  contracts,  actus 
contra  actum,  which  necessarily  suppose  the  assent  of  all  parties : 
but  this  is  not  at  all  to  be  compared  with  such  collateral  acts  or 
circumstances,  that  by  the  positive  law  are  made  the  effectual  parts 
of  a  conveyance;  as  attornment,  livery,  or  the  like;  for  the  assent 
of  the  party  that  takes,  is  implied  in  all  conveyances,  and  this  is 
by  intendment  of  laAV,  which  is  as  strong  as  the  expression  of  the 
party,  till  the  contrary  appears;  stahit  prn'sumptio  donee  prohetur 
in  contrarium. 

But  to  make  this  thing  clear,  my  Lord  Coke  in  his  first  Institutes, 
fol.  50,  where  he  gives  instances  of  conveyances  that  work  without 
livery,  or  further  circumstance  or  ceremony,  puts  the  cases  of  lease 
and  release,  confirmation,  devise  and  surrenders,  amongst  the  rest; 


660  THOMPSON    V.    LEACH  [CHAP.   X 

whereas  if  an  express  assent  of  the  surrenderee  were  a  circumstance 
to  make  it  effectual,  sure  lie  would  have  mentioned  it,  and  not  mar- 
shalled it  with  such  conveyances  as  I  have  shown  before,  need  no 
such  assent,  nor  anything  further  than  a  deed. 

The  case  of  exchanges  has  been  put  as  an  instance  of  a  conveyance 
at  law,  that  doth  not  work  immediately;  but  that  can't  be  compared 
to  the  case  in  question,  but  stands  upon  its  particular  reasons;  for 
there  must  be  a  mutual  express  consent,  because  in  exchanges  there 
must  be  a  reciprocal  grant,  as  appears  by  Littleton. 

Having,  I  hope,  made  out  (and  much  more  might  have  been  added, 
but  that  I  find  it  has  been  agreed)  that  conveyances  work  immediately 
upon  the  execution  of  them  on  the  part  of  him  that  makes  them, 
I  will  now  endeavor  to  show  the  reasons,  why  they  do  so  immediately 
vest  the  estate  in  the  party  without  any  express  consent;  and  to 
show  that  these  reasons  do  hold  as  strongly  in  case  of  surrenders, 
as  of  any  other  conveyances  at  law;  and  then  consider  the  incon- 
veniences and  ill  consequences  that  have  been  objected,  would  ensue, 
if  surrenders  should  operate  without  an  express  consent ;  and  to  show, 
that  the  same  are  to  be  objected  as  to  all  other  conveyances,  and 
that  very  odd  consequences  and  inconveniences  would  follow,  if 
surrenders  should  be  ineffectual  till  an  express  consent  of  the  sur- 
renderee ;  and  then  shall  endeavor  to  answer  the  arguments  that  have 
been  made  on  the  other  side,  from  the  putting  of  cases  of  surrenders 
in  the  books,  which  are  generally  mentioned,  to  be  with  mutual  assent, 
and  from  the  manner  of  pleading  of  surrenders. 

The  reasons  why  conveyances  do  divest  the  estate  out  of  the  grantor, 
before  any  express  assent  or  perhaps  notice  of  the  grantee,  I  conceive 
to  be  these  three: — 

First,  because  there  is  a  strong  intendment  of  law,  that  for  a  man 
to  take  an  estate  it  is  for  his  benefit,  and  no  man  can  be  supposed 
to  be  unwilling  to  that  which  is  for  his  advantage.  1  Rep.  44. 
Where  an  act  is  done  for  a  man's  benefit  an  agreement  is  implied, 
till  there  be  a  disagreement.  This  does  not  hold  only  in  convey- 
ances, but  in  the  gift  of  goods,  3  Co.  26.  A  grant  of  goods  vests 
the  property  in  the  grantee  before  notice.  So  of  things  in  action; 
a  bond  is  sealed  and  delivered  to  a  man's  use,  who  dies  before  notice, 
his  executors  may  bring  an  action.  Dyer,  167.  An  estate  made  to 
a  feme  covert,  vests  in  her  immediately,  till  the  husband  disagrees. 
So  is  my  Lord  Hobart,  204,  in  Swain  and  Eolmans  Case.  ISTow  is 
there  not  the  same  presumption  and  appearance  of  benefit  to  him  in 
reversion  in  case  of  a  surrender?  Is  it  not  a  palpable  advantage 
to  him  to  determine  the  particular  estate,  and  to  reduce  his  estate 
into  possession?  and  therefore,  why  should  not  his  assent  be  implied, 
as  well  as  in  other  conveyances? 

Secondly,  a  second  reason  is,  because  it  would  seem  incongruous 
and  absurd,  that  when  a  conveyance  is  completely  executed  on  the 
grantor's  part,  yet  notwithstanding  the  estate  should  continue  in 
him.     The  words  of  my  Lord   Coke    (1   Inst.   217   a)    are,   that   it 


SECT,    II]  THOMPSON    V.    LEACH  661 

cannot  stand  with  any  reason,  "that  a  freehold  should  remain  in  a 
man  against  his  own  livery  when  there  is  a  person  able  to  take  it." 
There  needs  only  a  capacity  to  take,  his  will  to  take  is  intended. 
Why  should  it  not  seem  as  unreasonable,  that  the  estate  should  re- 
main in  Simon  Leach,  against  his  own  deed  of  surrender?  For  in 
case  of  a  surrender,  a  deed,  and  sometimes  words  ^\'ithout  a  deed, 
are  as  eifectual  as  a  livery  in  case  of  a  feoffment. 

Thirdly,  the  third  and  principal  reason,  as  I  take  it,  why  the  law 
will  not  suffer  the  operation  of  a  conveyance  to  be  in  suspense,  and 
to  expect  the  agreement  of  the  party  to  whom  't  was  made,  is  to 
prevent  the  uncertainty  of  the  freehold.  This  I  take  to  be  the  great 
reason  why  a  freehold  cannot  be  granted  in  fufuro,  because  that  it 
would  be  very  hard  and  inconvenient  that  a  man  should  be  driven 
to  bring  his  prcecipe  or  real  action  first  against  the  grantor,  and 
after  he  had  proceeded  in  it  a  considerable  time,  it  should  abate 
by  the  transferring  the  freehold  to  a  stranger,  by  reason  of  his  agree- 
ment to  some  conveyance  made  before  the  writ  brought;  for  other- 
wise there  is  nothing  in  the  nature  of  the  thing  against  conveying 
a  freehold  in  future;  for  a  rent  de  novo  may  be  so  granted;  because 
that  being  newly  created,  there  can  be  no  precedent  right  to  bring 
any  real  action  for  it.     Palmer,  29,  30. 

Now  in  this  case,  suppose  a  prcecipc  had  been  brought  against 
Simon  Leach,  this  should  have  proceeded,  and  he  could  not  have 
pleaded  in  abatement  till  Sir  Simon  Leach  had  assented;  and  after 
a  long  progress  in  the  suit  he  might  have  pleaded,  that  Sir  Simon 
Leach  assented  jmis  darrein  continuance,  and  defeated  all.  So  that 
the  same  inconvenience,  as  to  the  bringing  of  real  actions,  holds  in 
surrenders,  as  in  other  conveyances. 

And  to  show  that  it  is  not  a  slight  matter,  but  what  the  law  much 
considers,  and  is  very  careful  to  have  the  freehold  fixed,  and  will 
never  suffer  it  to  be  in  abeyance,  or  under  such  uncertainty,  as  a 
stranger  that  demands  right  should  not  know  where  to  fix  his  action. 

A  multitude  of  cases  might  be  cited;  but  I  Avill  cite  only  a  case 
put  1  H.  6,  2  a,  because  it  seems  something  of  a  singular  nature, 
lord  and  villain,  mortgagor  and  mortgagee,  may  be  both  made 
tenants. 

But  it  will  be  said  here,  that  if  a  prcecipe  had  been  brought  against 
Sir  Simon  Leach,  might  not  he  have  pleaded  his  disagreement,  and 
so  abated  the  writ  by  non-tenure? 

'T  is  true;  but  that  inconvenience  had  been  no  more  than  in  all 
other  cases,  a  plea  of  non-tenure,  and  it  must  have  abated  immedi- 
ately; for  he  could  not  have  abated  it  by  any  dissent  after  he  had 
answered  to  the  writ.  Whereas  I  have  shown  it  in  the  other  case, 
it  may  be  after  a  long  progress  in  the  suit. 

Again,  it's  very  improbable  that  he  should  dissent;  whereas  on 
the  other  side,  an  assent  is  the  likeliest  thing  in  the  world;  so  the 
mischief  to  the  demandant  is  not  near  so  great,  nor  the  hundredth 
part  so  probable. 


662  THOMPSON    V.    LEACH  [CHAP.   X 

Now  I  come  to  consider  those  iiiconvciiiences  that  have  been  urged 
that  woukl  ensue,  if  a  surrender  should  work  immediately. 

It  has  been  said,  that  a  tenant  for  life  might  make  such  deed  of 
surrender,  and  continue  in  possession,  and  suffer  a  recovery;  and 
this  might  destroy  a  great  many  recoveries,  and  overthrow  marriage 
settlements,  and  defeat  charges  and  securities  upon  his  estate  after 
such  deed  of  surrender. 

These,  and  a  great  many  more  such  like  mischiefs,  may  be  instanced 
in  surrenders ;  but  they  hold  no  less  in  any  other  conveyance,  whereby 
a  man  may  (as  has  been  showed  before)  divest  himself  of  the  estate, 
and  yet  continue  the  possession;  and  in  this  case  the  assent  of  the 
surrenderee,  though  he  doth  not  enter,  would  (as  it  is  agreed  of 
all  hands)  vest  the  estate  in  him,  Hutton  95,  Br.  tit.  Surrender  50, 
though  he  cannot  have  trespass  before  entry,  and  that  assent  might 
be  kept  as  private,  and  let  in  all  the  mischiefs  before  mentioned  as 
if  no  such  assent  were  necessary. 

And  this  I  think  sufficient  to  answer  to  the  inconveniences  objected 
on  that  side. 


N'ow  let  us  see  what  inconveniences  and  odd  consequences  Avould 
follow,  in  case  a  surrender  could  not  operate  till  the  express  assent 
of  the  surrenderee,  then  no  surrender  could  be  to  an  infant  at  least, 
when  under  the  age  of  discretion;  for  if  it  be  a  necessary  circum- 
stance, it  cannot  be  dispensed  with  no  more  than  livery  or  attornment. 
So  though  an  infant  of  a  year  old  is  capable  to  take  an  estate, 
because  for  his  benefit  he  could  not  take  a  particular  estate,  upon 
which  he  had  a  reversion  immediately  expectant,  because  it  must 
inure  by  surrender.  If  there  be  joint  tenants  in  reversion,  a  sur- 
render to  one  of  them  inures  to  both,  1  Inst.  192,  214  a,  so  there, 
as  to  one  moiety,  it  operates  without  assent  or  notice. 

Suppose  tenant  for  life  should  make  livery  upon  a  grant  of  his 
estate  to  him  in  reversion  and  two  others,  and  the  livery  is  made 
to  the  other  two  in  the  absence,  and  without  the  notice  of  him  in 
reversion,  should  the  livery  not  work  immediately  for  a  third  part 
of  the  estate?  And  if  it  doth,  it  must  inure  as  a  surrender  for  a 
third  part.     So  is  Bro.  tit.  Surrender,  and  3  Co.  76. 

If  tenant  for  life  should  by  lease  and  release  convey  the  lands  held 
by  him  for  life,  together  with  other  lands  to  him  in  reversion  who 
knows  nothing  of  the  sealing  of  the  deed ;  should  this  pass  the  other 
lands  presently,  and  the  lands  held  for  life  not  till  after  an  express 
assent,  because  as  to  those  lands  it  must  work  as  a  surrender? 
Plainly  an  express  assent  is  not  necessary.  For  if  the  grantee  enters, 
this  is  sufficient. 

I  come  in  the  last  place  to  answer  those  arguments  that  have  been 
made  from  the  manner  of  putting  the  case  of  surrenders  in  the  book, 
and  the  form  of  pleading  surrenders,  Co.  1  Inst.  337  b. 


SECT.    Il]  THOMPSON    V.    LEACH  663 

First,  a  surrender  is  u  yielding  up  of  the  estate,  wliicli  drowns 
by  mutual  agreement  between  them.  Tenant  for  life,  by  agreement 
of  him  in  reversion,  surrenders  to  him;  he  hath  a  freehold  before 
he  enters.  And  so  Perkins,  in  putting  the  case  of  a  surrender,  men- 
tions an  agreement;  and  divers  other  books  have  been  cited  to  the 
same  purpose. 

To  all  which  I  answer : 

jSTo  doubt  but  an  agreement  is  necessary.  But  the  question  is, 
whether  an  agreement  is  not  intended  where  a  deed  of  surrender  is 
made  in  the  absence  of  him  in  the  reversion;  whether  the  law  shall 
not  suppose  an  assent,  till  a  disagreement  appears? 

Indeed,  if  he  were  present,  he  must  agree  or  disagree  inmicdiatcly ; 
and  so  't  is  in  all  other  conveyances.  The  cases  put  in  Perkins,  sect. 
607,  608,  609,  are  all  of  surrenders  made  to  the  lessor  in  person;  for 
thus  he  puts  them:  The  lessee  comes  to  the  lessor,  and  the  lessee 
saith  to  the  lessor,  I  surrender,  saith  he,  if  the  lessor  doth  not  agree, 
't  is  void;  Car  il  ne  poit  surrender  a  luy  maugre  son  dents.  And 
that  is  certainly  so  in  surrenders,  and  all  other  conveyances;  for  a 
man  cannot  have  an  estate  put  into  him  in  spite  of  his  teeth. 

But  I  cannot  find  any  of  the  books  cited  that  come  to  this  point, 
that  where  a  deed  of  surrender  is  executed  without  the  notice  of  him 
in  reversion,  that  it  shall  pass  nothing  till  he  consents;  so  that  it 
cannot  be  said,  that  there  is  any  express  authority  in  the  case. 

Now,  as  to  the  form  of  pleading  of  a  surrender  it  has  been  ob- 
jected, that  a  surrender  is  always  pleaded  with  acceptance;  and  many 
cases  have  been  cited  of  such  pleadings,  Bastal's  Entries  176,  177, 
Fitzh.  tit.  Barre  262,  which  are  cases  in  actions  of  debt  for  rent, 
and  the  defendant  in  bar  pleads,  that  he  surrendered  before  the  rent 
grew  due,  and  shows,  that  the  plaintiff  accepted  the  surrender.  So 
in  waste  brought,  a  surrender  pleaded  with  the  agreement  of  the 
plaintiff. 

These  and  the  like  cases  have  been  very  materially,  and  1  think 
fully  answered  at  the  bar  by  my  Brother  Pemberton;  that  those 
actions  being  in  disaffirmance  of  the  surrender,  and  implying  a  dis- 
agreement, the  defendant  had  no  way  to  bar  or  avoid  snch  disagree- 
ment, but  by  showing  an  express  agreement  before. 

The  case  of  Peto  and  Pemberton  in  the  3  Cro.  101,  that  has  been 
so  often  cited,  is  of  the  same  sort :  in  a  replevin  the  avowry  was  for 
a  rent-charge;  in  bar  of  which  't  is  pleaded,  that  the  plaintiff  demised 
the  land  out  of  which  the  rent  issued,  to  the  avowant.  The  avowant 
replies,  that  he  surrendered  dimissionem  proedict,  to  which  the 
plaintiff  agreed.  This  is  the  same  with  pleading  in  bar  to  an  action 
of  debt  for  rent :  but  when  the  action  is  in  pursuance  of  the  surrender, 
then  it  is  not  pleaded. 

So  is  East.  Entries  1:16.  The  lessee  l)rnught  an  action  of  coviMiant 
against  the  lessor,  for  entering  upon  iiini,  and  ousting  ut   him.     The 


664  THOMPSON    V.    LEACH  [CHAP.   X 

defendant  pleads  a  surrender  in  bar,  and  that  without  any  agreement 
or  acceptance. 

In  Fitzherbert,  tit.  Debt  149,  where  the  ease  is  in  an  action  of  debt 
for  rent;  the  defendant  pleaded  in  bar,  that  he  surrendered,  by  force 
of  which  the  plaintiff  became  seised ;  there  is  no  mention  of  pleading 
any  agreement,  notwithstanding  that  the  action  was  in  disaffirmance 
of  the  surrender. 

Therefore,  as  to  the  argument  which  has  been  drawn  against  the 
form  of  pleading,  I  say,  that  if  an  agreement  be  necessary  to  be 
pleaded :    then,  I  say, 

First,  that  't  is  answered  by  an  implied  assent,  as  well  as  an  express 
assent.  I  would  put  the  case;  suppose  a  lessee  for  life  should  make 
a  lease  for  years,  reserving  rent;  and  in  debt  for  the  rent  the  lessee 
should  plead,  that  the  plaintiff  before  the  rent  grew  due  surrendered 
to  him  in  reversion,  and  he  accepted  it,  and  issue  is  upon  the  accept- 
ance; and  at  the  trial  it  is  proved,  that  the  plaintiff  had  executed  a 
deed  of  surrender  (as  in  this  case)  to  him  in  reversion  in  his  ab- 
sence; would  not  this  turn  the  proof  upon  the  plaintiff,  that  he  in 
reversion  disagreed  to  this  surrender?  For  surely  his  agreement  is 
prima  facie  presumed,  and  then  the  rule  is,  stabit  prcesumptio  donee 
probetitr  in  contrarium. 

Again,  I  say  it  appears  by  the  cases  cited  that  it  is  not  always 
pleaded,  and  when  pleaded  't  is  upon  a  special  reason,  as  I  have 
shown  before,  i.  e.,  to  conclude  the  party  from  disagreeing;  and  it 
would  be  very  hard  to  prove  in  reason,  that  an  agreement  (admitting 
an  express  assent  to  be  necessary)  must  be  pleaded;  for  if  it  were 
a  necessary  circumstance  to  the  conveyance,  why  then  't  is  implied 
in  pleading  sursum  reddidit;  for  it  cannot  be  a  surrender  without  it. 

In  pleading  of  a  feoffment  it  is  enough  to  say  feoffavit,  for  that 
implies  livery;  for  it  cannot  be  a  feoffment  without  it. 

N"ow  why  should  not  sursum  reddidit  imply  all  necessary  requisites, 
as  well  as  feoffavit?  and  therefore  I  do  not  see  that  any  great  argu- 
ment can  be  drawn  from  the  pleading.     For, 

1.  It  is  not  always  to  be  pleaded. 

2.  It  cannot  be  made  out  to  be  necessary  so  to  plead  it;  for  if 
assent  be  a  necessary  requisite,  then  't  is  implied  by  saying  sursum 
reddidit,  as  livery  is  in  feoffavit:  and  then  to  add  the  words  of 
express  consent  is  as  superfluous,  as  to  show  livery  after  saying 
feoffavit. 

And  again,  if  it  were  always  necessary,  it  is  sufficiently  answered 
by  an  assent  intended  in  law ;  for  presumptions  of  law  stand  as  strong 
till  the  contrary  appears,  as  an  express  declaration  of  the  party.^ 

1  Penvev  v.  Tilton,  18  N.  H.  151.  accord. 

In  Standing  v.  Boimng,  L.  R.  31  Ch.  D.  282,  Halsbltry,  Lord  Chancellor. 
said,  p.  286:  "If  the  matter  were  to  be  discussed  now  for  the  first  time,  I 
think  it  might  well  be  doubted  whether  the  assent  of  the  donee  was  not  a 
preliminary  to  the  actual   passing   of  the   property.     You   certainly   cannot 


SECT.    Il]  THOMPSON    V.    LEACH  665 

make  a  man  accept  as  a  gift  that  which  he  does  not  desire  to  possess.  It 
vests  only  subject  to  repudiation.  That  is  a  matter  which  was  settled  by 
authorities  which  were  not  called  to  our  attention  in  the  course  of  the  argu- 
ment. In  Butler  and  Baker's  Case,  3  Rep.  26  b,  it  is  said:  'The  same  law 
of  a  gift  of  goods  and  chattels,  if  the  deed  be  delivered  to  the  use  of  the 
donee,  the  goods  and  chattels  are  in  the  donee  presently,  before  notice  or 
agreement;  but  the  donee  may  make  refusal  in  pais,  and  by  that  the  pro- 
erty  and  interest  will  be  devested.'  That  case  was  decided  in  the  year  1590. 
Exactly  100  years  afterwards,  in  Thompson  v.  Leach,  2  Vent.  198,  the  ques- 
tion again  arose,  and  was  decided  by  the  Queen's  Bench  against  the  opinion 
of  Ventri^,  J.  But  that  opinion  so  given  was  reversed  afterwards  by  the 
House  of  Lords  on  a  wTit  of  en-or,  2  Vent.  208,  and  that  was  a  ver>'  strong 
case  indeed,  because  the  effect  of  the  surrender  was  to  bar  a  contingent  re- 
mainder, which  would  otherwise  have  become  vested  by  the  birth  of  the  son, 
which  happened  before  the  assent  of  the  surrenderee.  In  Siggcrs  v.  Evans, 
1855,  5  E.  &  B.  367,  the  old  authorities  are  reviewed,  and  Lord  Campbell 
formulated  the  principle  which  I  have   indicated  above." 

Cotton,  L.  J.,  said  p.  288:  "  Now,  I  take  the  rule  of  law  to  be  that  where 
there  is  a  transfer  of  property  to  a  person,  even  although  it  carries  with  it 
some  obligations  which  may  be  onej'ous,  it  vests  in  him  at  once  before  he 
knows  of  the  transfer,  subject  to  his  right  when  informed  of  it  to  say.  if  he 
pleases,  '  I  will  not  take  it.'  When  informed  of  it  he  may  repudiate  it,  but  it 
vests  in  him  until  he  so  repudiates  it.  Siggcrs  v.  Evans,  5  E.  &  B.  367.  referred 
to  by  the  Lord  Chancellor,  is  a  late  case  to  that  effect,  in  which  the  earlier 
authorities  are  reviewed,  and  one  very  remarkable  case,  Smith  v.  Whrclcr.  1 
Vent.  128,  is  quoted  at  p.  382,  and  also  at  greater  length  in  Small  v.  Mar- 
wood,  9  B.  &  C.  300,  306,  where  the  right  of  the  Crown  was  defeated  by  an 
assignment  made  before  that  right  accnied,  but  not  communicated  to  the 
assignee  until  after  that  right  had  accrued.  It  was  held  that  although  the 
assignee  knew  nothing  of  the  assignment,  it  became  effectual  at  once,  so  as 
to  defeat  the  title  of  the  CrowTi,  which  accrued  before  the  knowledge  was 
communicated  to  the  assignee,  and  therefore  of  course  before  acceptance  by 
the  assignee." 
See  Mallott  v.  Wilson,  L.  R.  [19031,  2  Ch.  494. 

Contra,  Bank  of  Healdsburg  v.  Bailache,  65  Cal.  327;  Moore  v.  Flyiin.  135 
111.  74;  Woodbury  v.  Fi.^hcr,  20  Ind.  387;  Daij  v.  Griffith,  15  Iowa  104;  Simp- 
son V.  Yocum,  172  Ky.  449;  Meigs  v.  Dexter,  172  Mass.  217;  Couch  v.  Addy, 
35  Okl.  355;  Tuttle  v.  Turner,  28  Tex.  759;  Welch  v.  Sackett,  12  Wis.  243. 

But  see  Merril.l.s  v.  Swift,  18  Conn.  257;  Tibbals  v.  Jacobs,  31  Conn.  428; 
Jones  V.  Swayze,  42  N.  J.  L.  279;  Wilt  vi.  Franklin,  1  Binn.  (Pa.)  502; 
Larkey  v.  Lari.sey,  93  S.  C.  450;  2  Tiffany.  Real  Prop.,  2d  ed.,  §  463. 

Compare  Midkifj  v.  Colton,  242  F.  R.  373;  Hibberd  v.  Smith,  67  Cal. 
547;  Rittmaster  v.  Brisbane,  19  Colo.  371;  Sellers  v.  Rike,  292  111.  468; 
Greene  v.  Conant,  151  Mass.  223;  Blackwcll  v.  Blackwell,  196  Mass.  186; 
Derry  Bank  v.  Webster,  44  N.  H.  264;  Siggers  v.  Evans,  5  E.  <fe  B.  367. 

As  to  acceptance  by  grantees  under  a  disability,  see  Eastham  v.  PoutU, 
51  Ark.  530;  Hayes  v.  Boylnn,  141  111.  400;  Palmer  v.  Palmer,  62  Iowa  204; 
Hall  V.  Hall,  107  Mo.  101;  Davis  v.  Garrett,  91  Tenn.  147. 

THE  c.ANCBLLATiox  OF  DEEDS.  The  Cancellation  of  a  deed  does  not  destroy 
the  estate  created  by  it.  Campbell  v.  Jones,  52  Ark.  493;  Ward  v.  Lumley, 
5  H.  &  N.  87.  But  where  the  grantee  has  voluntarily  destroyed  or  surrendered 
his  deed,  he  will  not  ordinarily  be  allowed  to  give  parol  evidence  of  its  con- 
tents. See  Farrar  v.  Farrar,  4  N.  H.  191.  Compare  Bank  oj  Newbury  v. 
Eastman,  44  N.  H.  431. 

As  to  the  effect  of  the  Registry  Acts  on  the  cancellation  of  deeds,  see 
Comtnojiwealth  v.  Dudley,  10  Ma.ss.  403;  Holbrook  v.  Tirrcll,  9  Pick.  (Mass.) 
105;  Lawrence  v.  Stratton,  6  Cush.  (Mass.)  163. 


CHAPTER   XI 
REGISTRATION 

SECTION"   I 

-  STATUTES 

St.  7  Anne,  c.  20  (1708).  Whereas  by  the  different  and  secret 
ways  of  conveying  lands,  tenements,  and  hereditaments,  such  as  are 
ill  disposed  have  it  in  their  power  to  commit  frauds,  and  frequently 
do  so,  by  means  whereof  several  persons  (who  through  many  years 
industry  in  their  trades  and  employments,  and  by  great  frugality, 
have  been  enabled  to  purchase  lands,  or  to  lend  moneys  on  land 
security)  have  been  undone  in  their  purchases  and  mortgages,  by 
prior  and  secret  conveyances,  and  fraudulent  encumbrances,  and  not 
only  themselves,  but  their  whole  families  thereby  utterly  ruined : 
for  remedy  whereof,  may  it  please  your  most  excellent  Majesty  (at 
the  humble  request  of  the  justices  of  the  peace,  gentlemen,  and  free- 
holders of  the  county  of  Middlesex)  that  it  may  be  enacted,  and  be 
it  enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  spiritual  and  temporal,  and  Commons 
in  this  present  Parliament  assembled,  and  by  the  authority  of  the 
same,  That  a  memorial  of  all  deeds  and  conveyances,  which  from  and 
after  the  twenty-ninth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  nine,  shall  be  made  and  executed, 
and  of  all  wills  and  devises  in  writing  made  or  to  be  made  and  pub- 
lished, where  the  devisor  or  testatrix  shall  die  after  the  said  twenty- 
ninth  day  of  September,  of  or  concerning,  and  whereby  any  honors, 
manors,  lands,  tenements,  or  hereditaments  in  the  said  county,  may 
be  any  way  affected  in  law  or  equity,  may  be  registered  in  such 
manner  as  is  hereinafter  directed;  and  that  every  such  deed  or  con- 
veyance that  shall  at  any  time  after  the  said  twenty-ninth  day  of 
September,  be  made  and  executed,  shall  be  adjudged  fraudulent  and 
void  against  any  subsequent  purchaser  or  mortgagee  for  valuable 
consideration,  unless  such  memorial  thereof  be  registered  as  by  this 
Act  is  directed,  before  the  registering  of  the  memprial  of  the  deed 
or  conveyance  under  which  such  subsequent  purchaser  or  mortgagee 
shall  claim;  and  that  every  such  devise  by  will  shall  be  adjudged 
fraudulent  and  void  against  any  subsequent  purchaser  or  mortgagee 
for  valuable  consideration,  unless  a  memorial  of  such  will  be  regis- 
tered at  such  times  and  in  manner  as  is  hereinafter  directed. 

.  .  .  XVII.  Provided  always,  and  be  it  further  enacted,  That 
this  Act  shall  not  extend  to  any  copyhold  estates,  or  to  any  leases 
at  a  rack  rent,  or  to  any  lease  not  exceeding  one  and  twenty  years, 

666 


SECT.    l]  REGISTRATION  667 

where  the  actual  possession  and  occupation  goeth  along  with  the 
lease,  or  to  any  of  the  chambers  in  Serjeants  Inn,  the  inns  of  court, 
or  inns  of  Chancery;  anything  in  this  Act  contained  to  the  contrary 
thereof  in  any  wise  notwithstanding. 

Illinois,  Annot,  Stats.  (1913),  §2260.  Deeds,  mortgages, 
powers  of  attorney,  and  other  instruments  relating  to  or  affecting 
the  title  to  real  estate  in  this  State,  shall  be  recorded  in  the  county 
in  which  such  real  estate  is  situated;  but  if  such  county  is  not  or- 
ganized, then  in  the  county  to  which  such  unorganized  county  is 
attached  for  judicial  purposes. 

§  2262.  All  deeds,  mortgages  and  other  instruments  of  writing 
which  are  authorized  to  be  recorded,  shall  take  effect  and  be  in  force 
from  and  after  the  time  of  filing  the  same  for  record,  and  not  before, 
as  to  all  creditors^  and  subsequent  purchasers,  without  notice;  and 
all  such  deeds  and  title  papers  shall  be  adjudged  void  as  to  all  such 
creditors  and  subsequent  purchasers,  without  notice,  until  the  same 
shall  be  filed  for  record. 

§  2263.  Deeds,  mortgages  and  other  instruments  of  writing  relat- 
ing to  real  estate  shall  be  deemed,  from  the  time  of  being  filed  for 
record,  notice  to  subsequent  purchasers  and  creditors,  though  not  ac- 
knowledged or  proven  according  to  law;  but  the  same  shall  not  be 
read  as  evidence,  unless  their  execution  be  proved  in  manner  required 
by  the  rules  of  evidence  applicable  to  such  writings,  so  as  to  supply 
the  defects  of  such  acknowledgment  or  proof. 

Massachusetts,  General  Laws  (1921),  c.  183,  §  4.  A  convey- 
ance of  an  estate  in  fee  simple,  fee  tail  or  for  life,  or  a  lease  for" 
more  than  seven  years  from  the  making  thereof,  shall  not  be  valid 
as  against  any  person,  except  the  grantor  or  lessor,  his  heirs  and 
devisees  and  persons  having  actual  notice  of  it,  unless  it,  or  an  office 
copy  as  provided  in  section  thirteen  of  chapter  thirty-six,  is  recorded 
in  the  registry  of  deeds  for  the  county  or  district  in  Avliich  the  land 
to  which  it  relates  lies. 

§  29.  No  deed  shall  be  recorded  unless  a  certificate  of  its  acknowl- 
edgment or  of  the  proof  of  its  due  execution,  made  as  hereinafter 
provided,  is  endorsed  upon  or  annexed  to  it,  and  such  certificate 
shall  be  recorded  at  length  with  the  deed  to  which  it  relates;  but 
this  section  shall  not  apply  to  conveyances  from  the  United  States.- 

New  York.  Consol.  Laws  (1000),  lion]  Property  Law,  §  201. 
A  conveyance-   of  real   property,^  ^Wthin   tlie  state,  on  being  duly 

1  See  13  Col.  L.  Rev.  539. 

2  Sec  §  290  (3) ;  Drrhr  v.  Boicr,  83  N.  Y.  21o.  Compare  Hull  v.  Dirhl 
21   Mont.  71. 

3  The  term  "  real  prnp(M-ty."  as  used  in  thi.-^  article,  includes  lands,  tene- 
ments and  hereditampnts^s  and  chattels  real,  except  a  lease  for  a  term  not 
exceeding  three  years.     §  290  (1). 


668  REGISTRATION  [CHAP.   XI 

acknowledged  by  the  person  executing  the  same,  or  proved  as  re- 
quired by  this  chapter,  and  such  acknowledgment  or  proof  duly 
certified  when  required  by  this  chapter,  may  be  recorded  in  the  office 
of  the  clerk  of  the  county  where  such  real  property  is  situated,  and 
such  county  clerk  shall,  upon  the  request  of  any  party,  on  tender 
of  the  lawful  fees  therefor,  record  the  same  in  his  said  office/  Every 
such  conveyance  not  so  recorded  is  void  as  against  any  subsequent 
purchaser  in  good  faith  and.  for  a  valuable  consideration,  from  the 
same  vendor,  his  heirs  or  devisees,  of  the  same  real  property  or  any 
portion  thereof,  whose  conveyance  is  first  duly  recorded. 

§  292.  Except  as  otherwise  provided  by  this  article,  such  acknowl- 
edgment can  be  made  only  by  the  person  who  executed  the  cen- 
veyance,  and  such  firoof  can  be  made  only  by  some  other  person, 
who  was  a  witness  of  its  execution,  and  at  the  same  time  subscribed 
his  name  to  the  conveyance  as  a  witness. 

§  315.  Different  sets  of  books  must  be  provided  by  the  recording 
officer  of  each  county,  for  the  recording  of  deeds  and  mortgages;  in 
one  of  which  sets  he  must  record  all  conveyances  and  other  instru- 
ments absolute  in  their  terms  delivered  to  him,  pursuant  to  law, 
to  be  so  recorded,  which  are  not  intended  as  mortgages,  or  securities 
in  the  nature  of  mortgages,  and  in  the  other  set,  such  mortgages 
and  securities  delivered  to  him. 

§  320.  A  deed  conveying  real  property,  which,  by  any  other 
written  instrument,  appears  to  be  intended  only  as  a  security  in 
the  nature  of  a  mortgage,  although  an  absolute  conveyance  in  terms, 
must  be  considered  a  mortgage;  and  the  person  for  whose  benefit 
such  deed  is  made,  derives  no  advantage  from  the  recording  thereof, 
unless  every  writing,  operating  as  a  defeasance  of  the  same,  or  ex- 
planatory of  its  being  desired  to  have  the  effect  only  of  a  mortgage, 
or  conditional  deed,  is  also  recorded  therewith,  and  at  the  same  time. 

Pennsylvania,  St.  May  28,  1715,  §  8  (Pa.  St.  1920,  §  8842). 
No  deed  or  mortgage,  or  defeasible  deed,  in  the  nature  of  mortgages, 
hereafter  to  be  made,  shall  be  good  or  sufficient  to  convey  or  pass 
any  freehold  or  inheritance,  or  to  grant  any  estate  therein  for  life  or 
years,  unless  such  deed  be  acknowledged  or  proved  and  recorded 
within  six  months  after  the  date  thereof,  where  such  lands  lie,  as 
hereinbefore  directed  for  other  deeds. ^ 

•  St.  March  18,  1775,  §  1,  as  amended  by  St.  May  19,  1893,  P.  L. 
108  (Pa.  St.  1920,  §  8822).  All  deeds  and  conveyances,  which, 
from  and  after  the  passage  of  this  act,  shall  be  made  and  executed 
within  this  Commonwealth  of  or  concerning  any  lands,  tenements 
or  hereditaments  in  this  Commonwealth,  or  whereby  the  title  to  the 
same  may  be  in  any  way  affected  in  law  or  equity,  shall  be  acknowl- 
edged by  the  grantor,  or  grantors,  bargainor,  or  bargainors,  or  proved 

1  See  Heister  v.  Fnrtncr,  2  Bin.  (Pa.)  40,  43;  Fricdley  v.  Hamilton,  17  S. 
&  R.  (Pa.)  70;  Russell's  Appeal,  post,  p.  670. 


SECT.    l]  REGISTRATION  669 

by  one  or  more  of  the  subscribing  witnesses  thereto  before  one  of 
the  judges  of  the  supreme  court,  or  before  one  of  the  judges  of  the 
court  of  common  pleas,  or  recorder  of  deeds,  prothonotary,  or  clerk 
of  any  court  of  record,  justice  of  the  peace  or  notary  public  of  the 
county  wherein  said  conveyed  lands  lie,^  and  shall  be  recorded  in 
the  office  for  the  recording  of  deeds  where  such  lands,  tenements 
or  hereditaments  are  lying  and  being,  within  ninety  days  after  the 
execution  of  such  deeds  or  conveyance,  and  every  such  deed  and 
conveyance  that  shall  at  any  time  after  the  passage  of  this  act  be 
made  and  executed  in  this  Commonwealth,  and  which  shall  not  be 
proved  and  recorded  as  aforesaid,  shall  be  adjudged  fraudulent,  and 
void  against  any  subsequent  purchaser  or  mortgagee  for  a  valid 
consideration,  or  any  creditor  ^  of  the  grantor  or  bargainor,  in  said 
deed  of  conveyance,  and  all  deeds  or  conveyances  that  may  have  been 
made  and  executed  prior  to  the  passage  of  this  act,  having  been 
duly  proved  and  acknowledged  as  now  directed  by  law,  which  shall 
not  be  recorded  in  the  office  for  recording  of  deeds  in  the  county 
where  said  lands  and  tenements  and  hereditaments  are  lying  and 
being,  within  ninety  days  after  the  date  of  the  passage  of  this  act, 
shall  be  adjudged  fraudulent,  and  void  as  to  any  subsequent  pur- 
chaser for  a  valid  consideration,  or  mortgagee,  or  creditor  ^  of  the 
grantor,  or  bargainor  therein. - 

St.  March  28,  1820,  §  1,  as  amended  by  St.  May  28,  1915,  P.  L. 
631,  §  1  (Pa.  St.  1920  §  8845).  All  mortgages  or  defeasible  deeds, 
in  the  nature  of  mortgages,  made  or  to  be  made  or  executed  for  any 
lands,  tenements,  or  hereditaments  within  this  Commonwealth,  shall 
have  priority  according  to  the  date  of  recording  the  same,  without 
regard  to  the  time  of  making  or  executing  such  deeds;  and  it  shall 
be  the  duty  of  the  recorder  to  indorse  the  time  upon  the  mortgages 
or  defeasible  deeds  when  left  for  record,  and  to  number  the  same 
according  to  the  time  they  are  left  for  record;  and,  if  two  or  more 
are  left  upon  the  same  day,  they  shall  have  priority  according  to 
the  time  they  are  left  at  the  office  for  record.  ]^o  mortgage  or  de- 
feasible deed,  in  the  nature  of  a  mortgage,  shall  be  a  lien  until  such 
mortgage  or  defeasible  deed  shall  have  been  recorded,  or  left  for 
record  as  aforesaid.  No  mortgage  given  by  purchaser  to  seller,  for 
any  part  of  the  purchase  money  of  the  land  so  mortgaged,  shall  be 
affected  by  the  passage  of  this  act,  if  the  same  be  recorded  within 
tliirty  days  from  the  execution  thereof. 

1  See  Davey  v.  RuffcU,  162  Pa.  443;  Bcrnan  Thomas  Co.  v.  White,  112 
Atl.  (Pa.)  37. 

-  §  2  provides  that  deeds  made  out  of  the  Commonwoalth  shall  be  re- 
corded within  six  months. 

See  Smith  v.  Young,  259  Pa.  367. 


670  Russell's  appeal  [chap,  xi 

SECTION  II 

REGISTRATION   AS    NOTICE 

BEDFORD  V.  BACKHOUSE 

2  Eq.  Ca^.  Ab.  615,  pi.  12.     1730. 

A.  LENT  money  on  a  mortgage  of  lands  in  Middlesex,  and  the  mort- 
gage was  duly  registered.  Afterwards  B.  lent  money  on  the  same 
security,  and  his  mortgage  was  registered.  Then  A.  advanced  a  far- 
ther sum  upon  the  same  lands,  without  notice  of  the  second  mortgage. 
And  it  was  held  by  Lord  Chancellor  King  that  the  registry  of  the 
second  mortgage  was  not  constructive  notice  to  the  first  mortgagee 
before  his  advancement  of  the  latter  sum,  for  though  the  Statute 
avoids  deeds  not  registered  as  against  purchasers,  yet  it  gives  no 
greater  efficacy  to  deeds  that  are  registered  than  they  had  before; 
and  the  constant  rule  of  equity  is,  that  if  a  first  mortgagee  lends  a 
farther  sum  of  money  without  notice  of  a  second  mortgage,  his  whole 
money  shall  be  paid  in  the  first  place.^ 


RUSSELL'S  APPEAL 
15  Pa.  319.     1850. 

This  was  an  appeal  from  the  decree  of  the  Court  of  Common 
Pleas  of  Wayne  County,  making  distribution  of  the  proceeds  of  sale 
of  real  estate,  sold  at  sheriff's  sale  as  the  property  of  H.  D.  Roberts. 

Roberts,  the  defendant  in  the  several  judgments,  and  from  the  sale 
of  whose  real  estate  by  the  sheriff  arose  the  moneys  in  controversy, 
purchased  said  real  estate  on  the  11th  day  of  April,  1846,  of  Caleb 
Dunn,  by  articles  of  agreement  under  seal,  for  the  sum  of  $800.  On 
the  1st  day  of  May,  1847,  Roberts  had  paid  $463  on  said  contract. 
On  the  1st  day  of  December,  1848,  there  was  a  balance  due  and 
unpaid  on  said  contract  of  $412. 

On  the  5th  day  of  July,  1848,  Roberts  made  the  following  assign- 
ment on  the  back  of  said  contract,  Anz. :  — 

"  For  value  received,  I  hereby  assign  all  my  right,  and  title,  and 
interest  in  and  to  the  above  contract,  to  Stone  k  Graves  and  Moore 
and  Graves,  as  collateral  security  for  the  amount  due  them,  either  on 
book,  or  note,  or  otherwise,  said  amount  to  be  ascertained  hereafter 
as  soon  as  practicable.  H.  D.  Roberts. 

"Damascus,  July  5th,  1848." 

H.  D.  Roberts  took  possession  of  the  premises  under  the  article  of 
agreement,  x\pril  11th,  1846,  and  continued  in  possession  and  was  in 

^  See  Morecock  v.  Dickins,  Amb.  678. 


SECT.  II J         Russell's  appeal  671 

possession  on  the  30th  day  of  Xovember,  1849,  the  day  of  the  hear- 
ing before  the  auditor. 

On  the  19th  day  of  August,  1848,  A.  H.  Kussell  obtained  a  judg- 
ment against  said  H.  D.  Koberts  in  the  Court  of  Common  Pleas  of 
Wayne  County,  entered  to  No.  207,  September  Term  1848,  for  the 
sum  of  $275.  Interest  from  same  date,  and  which  judgment,  with 
the  interest  and  costs  thereon,  amounted  to  $324,885,  on  the  day  said 
real  estate  was  sold. 

On  the  9th  day  of  September,  1848,  John  McGowan  obtained  a 
judgment  in  same  court  against  H.  D.  Roberts,  entered  to  No.  265, 
same  term,  for  the  sum  of  $156.99.     Interest  from  same  day. 

On  the  1st  day  of  December,  1848,  the  contract  was  given  up  to 
Graves,  absolutely,  by  parol  agreement.  Same  day,  Caleb  Dunn  and 
wife  conveyed  by  deed  said  land  to  C.  C.  Graves :  consideration 
mentioned  in  deed,  $900. 

December  4th,  1848,  C.  C.  Graves  and  wife  conveyed  by  deed  same 
land  to  H.  D.  Roberts,  consideration  mentioned  in  deed,  $900.  Same 
day  Roberts  gave  Graves  a  judgment  for  $800,  which  was  entered 
same  day  to  No.  102,  December  Term  1848,  which,  with  interest  and 
cost,  amounted  to  $837.42  on  the  day  said  real  estate  was  sold.  The 
note  on  which  this  judgment  was  entered,  among  other  things,  stated, 
''  it  being  for  the  purchase-money  of  real  estate." 

On  the  13th  day  of  August,  1849,  the  sheriff  sold  said  real  estate  as 
the  property  of  H.  D.  Roberts,  to  C.  C.  Graves,  for  the  sum  of  $865, 
on  a  venditioni  exponas  issued  on  the  judgment  of  ^1.  H.  Russell  v. 
H.  D.  Roberts. 

An  auditor  was  appointed  by  said  court  to  distribute  said  moneys. 
Graves,  Russell,  and  McGowan,  in  person  or  by  attorney,  appeared 
before  the  auditor  and  severally  claimed  the  amount  of  their  judg- 
ments out  of  said  moneys. 

The  auditor  applied  $837.42  of  said  moneys  to  the  payment  in  full 
of  C.  C.  Graves's  judgment,  and  $3.71  to  Russell's,  and  balance  to 
auditor's  fees. 

A.  H.  Russell  and  John  McGowan  excepted  to  the  report,  and 
claimed  the  amount  of  their  several  judgments  from  said  moneys  — 
McGowan  claiming  to  come  in  ujjon  said  fund  after  Russell. 

The  court  confirmed  the  auditor's  report. 

Exception  was  taken  to  the  decree  of  confirmation  and  application 
of  the  money  in  dispute. 

The  opinion  of  the  court  was  delivered  March  24,  1851,  by 

Coulter,  J.  Roberts,  the  defendant,  as  whose  estate  the  land  was 
sold,  purchased  it  by  articles  of  agreement,  dated  11th  April,  1846, 
for  $800,  of  which  he  paid  $463,  went  into  possession,  and  remained 
in  possession  until  the  sale  and  distribution  of  the  money  below. 
Roberts  became  embarrassed  with  debts,  and  on  the  5th  July,  1848, 
he  executed  to  Stone  &  Graves  and  Graves  &  Moore  an  assignment 
of  the  contract  with  Dunn  under  which  he  held  the  laud,  and  all  his 


672  Russell's  appeal  [chap,  xi 

right  and  title  thereby  acquired,  as  collateral  security  for  the  amount 
due  them. 

This  assignment  was  never  recorded,  and  Roberts  still  remained  in 
possession.  On  the  19th  August,  1848,  after  the  unrecorded  assign- 
ment, Russell  obtained  his  judgment,  and  on  the  9th  September  fol- 
lowing, McGowan  obtained  his  judgment.  These  two  judgments 
claim  the  money  produced  by  the  sale,  according  to  their  priority. 
But  on  the  1st  December,  1848,  Roberts,  by  parol,  surrendered  the 
land  to  Graves,  one  of  the  assignees ;  and  on  the  same  day,  Dunn  and 
wife  conveyed  to  C.  C.  Graves,  consideration  mentioned  in  deed, 
$900.  On  the  4th  December,  1848,  Graves  and  wife  conveyed  to 
H.  D.  Roberts,  the  defendant,  who  gave  a  judgment  note  to  Graves 
for  $800,  which  was  immediately  entered  up. 

To  this  last  judgment  the  court  below  awarded  the  whole  money 
made  by  the  sale  on  Russell's  judgment.  It  was  contended  by  Rus- 
sell and  McGowan  that  they  were  entitled  to  the  whole  fund,  be- 
cause the  note  given  by  Roberts  falsely  and  fraudulently  recited  that 
it  was  for  the  purchase-money.  But  it  is  well  enough  to  deliver  the 
case  at  once  from  this  argument,  because  these  judgments  could  only 
bind  the  equity,  if  it  bound  anything,  which  was  in  Roberts  at  the 
time  they  were  obtained,  that  is,  after  the  assignment  to  Graves  & 
Moore.  The  stream  cannot  rise  above  the  fountain.  And  the  bal- 
ance of  purchase-money  then  due  was  a  previous,  valid,  subsisting 
lien.  The  shuffling  between  Dunn,  Roberts,  and  Graves  cannot  give 
to  Russell  and  McGowan  more  than  they  were  entitled  to,  nor  de- 
prive Dunn  or  his  representative  of  that  to  which  he  had  a  lawful 
claim. 

The  real  question  then  is,  whether  the  judgments  of  Russell  and 
McGowan  bound  the  equity  which  Roberts  had  in  the  land  at  the 
time  of  the  assignment  to  Graves  &  Moore?  And  that  will  depend 
upon  the  effect  of  that  assignment.  It  was  not  an  absolute  sale  or 
transfer  of  the  equity,  because  it  is  expressed  on  its  face  to  be  a 
collateral  security  for  the  payment  of  a  debt.  It  was,  therefore,  at 
most,  nothing  more  than  a  mortgage.  Even,  although  a  convey- 
ance be  absolute  in  its  terms,  if  it  is  intended  by  the  parties  to  be  a 
mere  security  for  the  payment  of  a  debt,  it  is  a  mortgage:  6  Watts, 
409,  Keene  v.  Gilmore;  and  Clark  v.  Henry,  2  Cowen,  324;  7  John- 
son's Chancery,  40,  Henry  v.  Davis.  Roberts  still  continued  the 
debtor  of  Graves  &  Moore.  The  debt  was  not  extinguished;  it  was, 
therefore,  a  mortgage.  Nor  has  the  writing  the  distinctive  marks  of 
a  conditional  sale,  for  the  same  reason,  to  wit,  that  the  original 
debt  was  by  the  face  of  the  papers  still  subsisting.  But  it  was  never 
recorded,  and,  therefore,  must  be  postponed  to  a  subsequent  judg- 
ment: Jacques  v.  Weeks,  7  Watts,  261;  and  17  Ser.  &  R.  70;  and 
Statute  28th  March,  1820,  Dunlop,  p.  354,  second  edition.  It  is 
contended,  however,  that  the  contract  for  the  conveyance  of  the 
land  to  Roberts  was  but  a  chose  in  action,  and  that  the  assignment 


SECT.  II  ]  Russell's  appeal  673 

passed  the  title,  without  the  necessity  of  recording;  that  it  is  not 
within  the  recording  Acts;  and  Craft  v.  Webster,  4  Rawle,  and  Mott 
V.  Clark,  9  Barr,  were  cited.  But  these  cases  do  not  carry  the  de- 
fendant in  error  through.  An  article  of  agreement  for  the  sale  of 
land,  accompanied  by  delivery  of  possession  and  payment  of  part 
of  the  purchase-money,  is  much  more  than  a  chose  in  actioii ;  it  is 
an  abiding  interest  in  the  land  itself.  It  may  be  bound  by  judgment; 
is  the  subject  of  judicial  sale,  not  as  a  chattel,  but  as  an  interest 
in  the  land.  In  the  early  history  of  Pennsylvania,  improvement 
rights  Avere  considered  as  chattels.  But  that  time  has  long  passed, 
and  pre-emption  or  inchoate  interests  are  bound  by  judgments  and 
sold,  because  every  interest  arising  out  of  real  estate,  equitable  as 
well  as  legal,  is  considered  as  an  interest  in  the  land.  Thousands  of 
acres  are  held  in  this  commonwealth  by  location  and  survey  only. 
It  would  sound  strangely  to  a  lawyer  of  the  interior  to  say  that 
these  interests  were  not  real  estate,  and  the  transfer  or  encumbrance 
of  them  not  subject  to  the  recording  laws.  Such  a  doctrine  would 
upset  estates  and  change  the  accepted  principles  of  the  common- 
wealth. They  have  from  ancient  time  been  dealt  with  by  the  peojTle 
as  interest  in  real  estate,  like  other  equitable  interests  in  land ;  and, 
being  the  subject  of  contract  and  sale  as  such,  there  is  the  same 
reason  for  their  being  subject  to  the  recording  Acts  as  the  legal  title. 
The  experienced  and  learned  counsel  states  that  he  has  been  unable  to 
find  any  reported  case  in  which  such  equities  Avere  adjudged  to  be 
the  subject  of  the  recording  Acts.  But  it  may  never  before  have 
been  drawn  in  question.  I  know  very  well,  and  I  think  every  prac- 
titioner is  acquainted  with  the  fact,  that  mortgages  are  often  given 
upon  equitable  estates,  and  that  equitable  estates  are  often  the  sub- 
ject of  bargain  and  sale;  and  I  may  say,  that  I  don't  recollect  to 
have  seen  it  contended  in  any  case  that  the  recording  Acts  applied 
only  to  strictly  legal  titles,  or  that  judgments  were  liens  or  attached 
only  upon  legal  estates.  The  subsequent  judgments,  therefore,  be- 
came liens  at  the  time  of  their  entry  upon  the  equitable  interest  of 
Roberts,  the  assignment  to  Graves  &  Moore  being  merely  a  mort- 
gage or  security  for  a  debt,  and  tliorcfore,  not  being  recorded,  must 
give  Avay  to  the  subsequent  judgments. 

The  decree  is  therefore  reversed,  and  it  is  modified,  so  as  to 
award  to  tho  legal  title,  or  those  representing  it,  so  much  of  the 
money  or  fund  in  court  as  w^as  due  for  balance  of  purchase-money 
by  Roberts  at  the  time  Russell  obtained  his  judgment;  and  the  resi- 
due is  awarded  to  Russell's  judgment,  uidess  the  residue  will  more 
than  satisfy  it;  and,  in  such  case,  Avhat  remains  is  awarded  to  Mc- 
Gowan's  judgment. 

The  record  is  remitted  to  the  court  below  for  th(>  purpose  of  carry- 
ing out  this  modified  decree.^ 

1  Compare  Mcsick  v.  Sunderland,  6  Cal.  297;  Salisbury  v.  La  Fittc,  57 
Colo.  358;   Walker  v.  Walker,  198  Pac.  (Colo.)  432;  Richards  v.  Potter,  124 


674  GRAVES  V.    GRAVES  [CHAP.  XI 

GRAVES  V.  GRAVES 
6  Gray  (Mass.)  391.     1856. 

Writ  of  entry  to  recover  a  tract  of  land  in  Whately  and  Deerfield. 
Plea,  nid  disseisin.  At  the  trial  in  this  court,  both  parties  claimed 
title  under  Franklin  Graves. 

It  appeared  that  on  the  25'th  of  January  1854  Franklin  Graves 
conveyed  the  premises  to  Josiah  Allis  by  a  warranty  deed,  and  Allis 
at  the  same  time  executed  to  Franklin  Graves  a  bond  of  defeasance 
for  the  reconveyance  of  the  land  upon  payment  of  the  sum  of  $1,600 
in  three  years  and  interest  annually,  and  for  the  possession  of  the 
land  during  the  three  years  by  the  obligee,  he  paying  the  interest, 
taxes,  and  insurance. 

The  tenant  gave  in  evidence  an  assignment,  under  seal,  from 
Franklin  Graves  to  the  tenant,  indorsed  on  said  bond,  and  dated 
March  18th  1854,  assigning  "unto  the  said  Erastus  L.  Graves,  his 
executors,  administrators,  and  assigns,  the  within  written  bond  or 
obligation,  and  the  sum  of  sixteen  hundred  dollars  mentioned  in 
the  condition  thereof,  together  with  all  interest  due  and  to  grow  due 
for  the  same,  and  all  my  right,  title,  interest,  claim,  and  demand 
whatsoever  in  and  to  the  same,  and  all  the  right,  title,  and  interest 
which  the  said  bond  gives  me  in  said  sum  of  money,  or  the  land  to 
which  it  relates."  This  assignment  was  not  acknowledged  before 
any  magistrate,  but  was  recorded  in  the  registry  of  deeds. 

The  demandant  claimed  title  under  a  subsequent  attachment  and 
levy  of  execution  upon  the  land  as  the  property  of  Franklin  Graves ; 
and  contended  that  the  assignment  was  ineffectual  to  convey  any  title 
in  the  land  to  the  tenant,  for  the  following  reasons : 

1st.  Because  it  was  uncertain  in  its  terms,  and  therefore  void; 
inasmuch  as  it  was,  in  terms,  not  a  mere  transfer  of  the  bond,  but 
also  a  transfer  of  the  sum  of  $1,600  mentioned  therein,  which  was 
not  a  sum  due  to  the- obligee,  but  the  mortgage  debt  which  he  was 
to  pay  to  the  obligor. 

2d.  Because,  so  far  as  its  purpose  could  be  ascertained,  it  was  a 
mere  assignment  of  the  bond,  as  a  contract  or  chose  in  action,  and 
not  of  any  interest  in  the  land;  the  assignment  not  running  to  the 
assignee's  heirs,  and  not  being  acknowledged,  nor  treated  by  the 
parties  as  a  deed;  and  not  purporting  to  convey  the  title  which  the 
assignor  originally  had,  but  only  "  all  the  right,  title,  and  interest 
which  the  said  bond  gives  me  in  the  land  to  which  it  relates,"  which 
was  no  interest  whatever;  that,  if  the  bond  had  been  originally  made 


S.  W.  (Ky.)  850;  Putnam,  v.  Story,  132  Mass.  205;  Sjohhm  v.  Mark,  103 
Minn.  193;  Dedeaux  v.  Cuevaff,  107  Miss.  7;  Wootton  v.  Dynes,  83  N.  J. 
Eq.  163;  Bernard  v.  Benson,  58  Wash.  191;  Camp  Mfg.  Co.  v.  Carpenter, 
112  Va.  79;  Scott,  Cas.  on  Trusts,  p.  623. 


SECT.    Il]  FROST    V.    BEEKMAN  675 

to  a  third  person,  it  would  have  given  him  no  interest  in  the  land, 
and  an  assignment  of  it  to  him  had  no  greater  effect. 

3d.  Because,  as  a  deed,  it  was  ineffectual,  for  want  of  acknowledg- 
ment, and  of  any  legal  record. 

Dewey,  J.,  being  of  opinion  that,  for  some  or  all  of  these  reasons, 
the  assignment  was  iiiBufficient  to  defeat  the  demandant's  title  under 
his  attachment  and  levy  of  execution,  took  the  case  from  the  jury, 
and  reserved  the  question  for  the  full  court,  with  an  agreement  that 
if  the  ruling  was  right,  the  tenant  should  be  defaulted;  if  not,  the 
case  should  stand  for  trial. 

Shaw,  C.  J.  It  is  very  clear  that  the  warranty  deed  from  Frank- 
lin Graves  to  Allis,  and  the  simultaneous  bond  to  reconvey  upon 
payment  of  a  sum  of  money,  constituted  a  mortgage  to  Allis,  and 
left  an  equity  of  redemption  in  Franklin  Graves, 

The  court  are  of  opinion  that  the  effect  of  the  assignment  of  the 
instrument  of  defeasance  by  Franklin  Graves  to  Erastus  L.  Graves, 
with  all  his  right,  title,  and  interest  in  the  land  therein  described, 
constituted  a  conveyance  of  the  equity  of  redemption. 

But  the  instrument  of  defeasance,  not  being  acknowledged,  was  im- 
providently  admitted  to  registration,  and  the  record  does  not  operate 
as  constructive  notice  of  the  execution  of  the  assignment  of  the 
equity  of  redemption,  as  against  an  attaching  creditor  of  the  equity; 
and  therefore  the  title  of  the  attaching  creditor,  tliough  subsequent 
in  time,  takes  precedence  of  the  assignment. 

We  think  however  that,  under  the  circumstances,  it  is  proper  that 
the  case  should  go  to  a  new  trial,  to  enable  the  defendant  to  prove, 
if  he  can,  actual  iiotice  to  the  plaintiff  of  the  prior  assignment  of 
the  equity,  when  he  made  his  attachment.^  New  trial  ordered. 


FROST  AND  Others  v.  BEEKMAN" 
1  Johns.  Ch.  (N.  Y.)  288.     1814. 

The  Chancellor  [Kent^].  .  .  .  Another  and  a  more  interest- 
ing question,  is  respecting  the  extent  and  effect  of  the  registry  of  the 
defendant's  mortgage,  as  notice  to  purchasers.     It  was  a  mortgage 

1  See  HarriFt  v.  Reed,  21  Idaho  364;  Blond  v.  Blood.  23  Pick.  (Mass.)  SO, 
84;  Tinnin  v.  Broum.,  78  Mi.ss.  378;  Heintz  v.  Moore,  246  Mo.  226;  MBce  v. 
O'ConncU,  16  N.  M.  469;  hulinn  Land  Co.  v.  Scott,  59  Okla.  240;  Ihistcr 
V.  Fortncr,  2  Bin.  (Pa.)  40;  PhilUsi  v.  r7ro.s,«?,  32  S.  D.  438;  Dean  v.  Gihs^on, 
48  S.  W.  (Tpx.  Civ.  App.)  57;  South  Pcnn.  Oil  Co.  v.  Blue  Creek  Co.,  77 
W.  Va.  682;  Ihric;  v.  Ihrig,  78  W.  Va.  360. 

Compare  Moore  v.  Ollson,  105  Ark.  241;  Carter  v.  Champion,  8  Conn. 
549;  Nordman  v.  Rau,  86  Kan.  19,  38  L.  R.  A.  n.  s.  400  note;  Cain  v.  Graii, 
146  Ky.  402;  Amnunnan  v.  Linton,  279  Mo.  439;  People  v.  Donegan,  226 
N.  Y.  84;  B/w,s  v.  Tidrich,  25  S.  D.  533,  Ann.  Ca.s.  1912  C.  675  note;'  Hitt  v. 
Caneu  Coal  Co.,  124  Tonn.  334;   Ma.ss..  Con.  Laws  (1921),  C.  183,  §§  29-42. 

-  Part  only  of  the  opinion  i.s  here  given. 


676  FROST    V.    BEEKMAN  [CHAP.   XI 

for  3,000  dollars,   and,  by  mistake,  the  registry  was  only  for  300 
dollars.     This  mistake  is  the  whole  cause  of  the  controversy. 

The  Mortgage  Act  of  the  sess.  24  ch.  156,  declared,  among  other 
things,  that  the  registry  of  a  mortgage  should  contain,  not,  indeed, 
the  mortgage  at  large,  but  the  essential  parts  of  the  mortgage,  and 
among  other  specified  parts,  "  the  mortgage  money,  and  the  time,  or 
times,  when  payable."'  To  this  register  all  persons  whomsoever,  at 
proper  seasons,  are  at  liberty  to  have  recourse;  and  the  Act  declared 
that  mortgages  were  to  have  preference,  as  to  each  other,  according 
to  the  times  of  registry,  and  that  "  no  mortgage  should  defeat  or 
prejudice  the  title  of  any  bona  fide  purchaser,  unless  the  same  should 
have  been  duly  registered,  as  aforesaid."  This  registry  is  notice  of 
the  mortgage  to  all  subsequent  purchasers  and  mortgagees ;  and  'so 
the  Act  was  construed,  and  the  law  declared,  by  the  Court  of  Errors, 
in  the  case  of  Jolins.on  v.  Stagg,  2  Johns.  Rep.  510.  The  English 
authorities  on  this  point  do  not,  therefore,  govern  the  case.  The  lan- 
guage of  those  authorities,  undoubtedly,  is,  that  the  registry  is  not 
notice,  though  that  doctrine  is  much  questioned,  and  the  point  seems 
still  to  be  floating  and  unsettled.  Bedford  v.  Backhouse,  3  Eq.  Cas. 
Abr.  615,  pi.  12;  Wrightson  \.  Hudson,  lb.  609,  pi.  7;  Morecoch  v. 
Dickins,  Amb.  678;  Latouche  v.  Dunsany,  1  Schoale  &  Lefroy,  157; 
Sugden  (3d  Lond.  ed.),  524-527;  Com.  Dig.  tit.  32,  Deed,  ch.  21,  s.  11. 
The  only  question  with  us  is,  when,  and  to  what  extent,  is  the  registry 
notice?  Is  it  notice  of  a  mortgage  unduly  registered?  or  is  it 
notice  beyond  the  contents  of   the  registry? 

The  true  construction  of  the  Act  appears  to  be,  that  the  registry  is 
notice  of  the  contents  of  it,  and  no  more,  and  that  the  purchaser  is 
not  to  be  charged  wnth  notice  of  the  contents  of  the  mortgage,  any 
further  than  they  may  be  contained  in  the  registry.  The  purchaser 
IS  not  bound  to  attend  to  the  correctness  of  the  registry.  It  is  the 
business  of  the  mortgagee,  and  if  a  mistake  occurs  to  his  prejudice, 
the  consequences  of  it  lie  between  him  and  the  clerk,  and  not  be- 
tween him  and  the  bona  fide  purchaser.  The  Act,  in  providing  that 
all  persons  might  have  recourse  to  the  registiy,  intended  that  as  the 
correct  and  sufficient  source  of  information;  and  it  would  be  a  doc- 
trine productive  of  immense  mischief  to  oblige  the  purchaser  to  look, 
at  his  peril,  to  the  contents  of  every  mortgage,  and  to  be  bound  by 
them,  when  different  from  the  contents  as  declared  in  the  registry. 
The  registry  might  prove  only  a  snare  to  the  purchaser,  and  no 
person  could  be  safe  in  his  purchase,  without  hunting  out  and  inspect- 
ing the  original  mortgage,  a  task  of  great  toil  and  difficulty.  I  am 
satisfied  that  this  was  not  the  intention,  as  it  certainly  is  not  the 
sound  policy,  of  the  Statute;  nor  is  it  repugnant  to  the  doctrine  con- 
tained in  the  books,  that  notice  to  a  purchaser,  of  the  existence  of 
a  lease,  is  notice  of  its  contents.  Taylor  v.  Stibbert,  2  Yes.  jun.  437; 
Hiern  v.  Mill.  13  Yes.  jun.  118-120;  Tlall  v.  Smith,  14  Yes.  jun. 
426.    In  that  case,  the  party  is  put  upon  inquiry,  and  he  must  make 


SECT.    II ]         GEORGE   AND   EDWARD    CURTIS    V.    LYMAN  677 

it,  or  abide  the  consequences.  The  decision,  in  Jackson  v.  NeeJy,  10 
Johns.  Eep,  374,  was  made  upon  the  same  principle;  and  it  was  held 
that  the  recital  in  a  deed  of  a  letter  of  attorney,  by  which  it  was 
made,  was  notice  to  the  purchaser  of  the  existence  of  such  a  power. 
But  here  the  Statute  did  not  mean  to  put  the  party  upon  further  in- 
quiry. The  registry  was  intended  to  contain,  within  itself,  all  the 
knowledge  of  the  mortgage  requisite  for  the  purchaser's  safety. 

The  question  does  not  necessarily  arise,  in  this  case,  how  far  the 
unauthorized  registry  of  a  mortgage,  as  one  made,  for  instance, 
without  any  previous  legal  proof,  or  acknowledgment,  would  charge 
a  purchaser  with  notice  of  the  mortgage.  The  better  opinion,  in  the 
books,  seems  to  be,  that  it  would  not  be  notice,  and  that  equity  will 
not  interfere  in  favor  of  an  encumbrancer,  when  he  has  not  seen 
that  his  mortgage  was  duly  registered.  Sugden's  Law  of  Vend.  527 ;  1 
Schoale  &  Lefroy,  157;  Heister  v.  Fortner,  2  Binney,  40.  But  here 
everything  was  done  that  could  have  been  previously  required  of  the 
mortgagee.  The  mortgage  was  duly  presented  for  registry,  and  he 
was  not  bound  to  inspect  and  correct  the  record.  This  was  the  ex- 
clusive business  and  duty  of  the  clerk,  and  there  is  no  reason 
why  the  registry  should  not  operate  as  notice,  to  the  amount  of  the 
sum  mentioned  therein ;  and,  indeed,  so  far  the  obligation  of  the 
registry  is  admitted  by  the  bill. 

I  conclude,  therefore,  that  the  registry  was  notice  to  purchasers, 
to  the  amount,  and  only  to  the  amount,  of  the  sum  specified  in  the 
registry.^ 


GEORGE  AND  EDWARD  CURTIS  v.  LYMAX  axd  Others 
24  Vt.  338.    1852. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court,  which 
was  delivered  by 

Hall,  J.  This  is  an  appeal  from  chancery.  The  ])ill  is  for  the 
foreclosure  of  a  mortgage  in  conunon  form.  The  com])lainants  are 
the  mortgagees;  one  of  the  dcfenchuits,  Edgerton,  being  the  mort- 

1  See  s.  c.  on  appeal,  18  Johns.  544  (1820). 

See  Sinclair  v.  Gunzenhauscr,  179  Ind.  78;  Farahcc  v.  }fcKrrrihan.  172 
Pa.  234. 

But  compare  Minis  v.  Minis,  35  Ala.  23;  and  soo  Cairthorn  v.  Steams, 
60  Fla.  313;  Latourell  v.  Hobart,  135  Minn.  109. 

"  This  question  could  never  arise  between  a  mortgapee  and  a  subsequent 
judgment-creditor,  for  tho  plain  reason,  that  such  a  creditor  is  not  a  pur- 
chaser, nor  entitled  to  the  privileges  of  that  position. 

"  So  far  as  the  Statute  goes,  in  giving  him  a  preference  over  mortgages  not 
perfected  by  a  deliver>'  to  the  recorder,  his  right,s  are  absolute,  but  for 
everything  else,  he  is  remitted  to  general  principles;  and  upon  general  prin- 
ciples, it  is  ver>'  clear  that  he  acquires  a  lien  only  upon  the  interests  of  his 
debtor,  and  is  bound  to  yield  to  every  claim  that  could  be  successfully 
asserted  against  him."     Toiuslcy  v.  Touslcy,  5  Ohio  St.  78,  87  (1855). 


678  GEORGE   AND   EDWARD    CURTIS    V.    LYMAN        [CHAP.   XI 

gagor,  and  anotlicr  defendant,  Lyman,  being  a  purchaser  under 
Edgerton. 

The  facts  found  and  about  which  there  is  little  or  no  controversy, 
are  these : — 

Edgerton  being  indebted  to  the  plaintiffs  by  note  in  the  sum  of 
$2000,  mortgaged  to  them  certain  lands,  which  mortgage  was  tran- 
scribed upon  the  book  of  records  of  the  town  on  the  11th  of  June, 
1835,  and  duly  certified  as  recorded;  but  no  reference  to  the  record 
was  entered  upon  the  alphabet.  Subsequently,  the  defendant  Lyman, 
without  actual  notice  of  the  mortgage,  and  before  the  record  of  it  was 
alphabetted,  for  the  consideration  of  $5000,  purchased  the  same  land 
of  the  mortgagor,  his  deed  being  recorded  Feb.  7,  1839.  Both  the 
mortgage  and  deed  were  received  for  record  and  certified  as  recorded 
by  Edgerton,  the  mortgagor,  who  from  March,  1835,  to  March,  1841, 
was  the  town  clerk,  and  the  reference  to  the  mortgage  was  first 
entered  on  the  index  by  the  subsequent  town  clerk  in  August  or  Sep- 
tember, 1844.  There  is  no  evidence  that  the  mortgagees  had  any 
knowledge  of  the  neglect  of  the  town  clerk  to  enter  their  mortgage  on 
the  alphabet,  and  they  must  be  taken  to  be  ignorant  of  it.  No  other 
objection  is  made  to  the  record,  but  the  want  of  an  index  to  it,  and 
it  is  to  be  treated  as  having  been  in  all  other  respects  regular  and 
sufficient. 

The  question  is,  whether  the  neglect  of  the  clerk  to  index  the  mort- 
gage, shall  render  the  record  of  it  invalid,  so  as  to  postpone  the  title 
of  the  mortgagees  to  that  of  the  subsequent  purchase. 

The  determination  of  this  question  must  depend  upon  the  construc- 
tion of  the  Statutes  of  1797  in  relation  to  the  recording  of  convey- 
ances, which  Statutes  were  in  force  w^hen  both  deeds  were  lodged  in 
the  town  clerk's  office. 

The  5th  section  of  the  Act  for  Regulating  Conveyances  of  Real 
Estate,  specifies  the  several  requisites  of  such  conveyances.  It  de- 
clares "  that  all  deeds  or  other  conveyances  of  any  lands,  tenements 
or  hereditaments,  lying  in  this  State,  signed  and  sealed  by  the  party 
granting  the  same,  having  good  and  lawful  authority  thereunto  and 
signed  by  two  or  more  witnesses,  and  acknowledged  by  such  grantor 
or  grantors  before  a  justice  of  the  peace,  and  recorded,  at  length,  in 
the  clerVs  office  of  the  town,  in  which  such  lands,  tenements  or 
hereditaments  tie,  shall  be  valid  to  pass  the  same,  without  any 
other  act  or  ceremony  in  law  whatever." 

If  the  language  of  this  Statute  were  to  be  taken  in  its  ordinary 
sense  and  serve  to  control  our  decision,  there  would  seem  to  be  but 
little  doubt  of  its  effect.  There  would  in  regard  to  the  mortgage 
appear  to  have  been  a  full  and  literal  compliance  with  the  words  of 
the  Statute.  The  mortgage  had  been  transcrihed  at  length  in  the 
town  clerk's  office,  and  by  the  proper  officer,  and  duly  certified  as 
recorded;  and  that  is  what  is  commonly  understood  as  constituting 
a  record  of  it. 


SECT.    II]         GEORGE   AND   EDWARD    CURTIS    V.    LYMAN  679 

It  is,  liowevor,  said,  that  although  the  ordinary  signification  of 
the  word  ^'  recorded  "  may  be  satisfied  by  what  was  done  in  this  case, 
yet,  that  the  Act  regulating  town  meetings  and  the  choice  and  duty 
of  town  officers,  is  to  be  construed  as  providing  an  additional  requi- 
site to  the  record  of  conveyance  —  in  other  words,  as  in  effect  de- 
claring that  a  deed  shall  not  be  considered  as  recorded,  until  an 
index  to  it  is  entered  upon  the  alphabet. 

No  such  language  is,  however,  found  in  that  Act,  nor  do  we  think 
any  intention  to  engraft  such  additional  requisite  upon  a  deed  can 
be  fairly  implied  from  the  language  used.  The  objeot  of  the  Act 
is  to  point  out  the  duty  of  the  clerk,  not  only  in  the  making  of  a 
proper  record  of  conveyances,  but  also  in  furnishing  facilities  for 
their  discovery,  examination  and  use  by  all  persons  interested  in 
them.  And  to  secure  the  due  performance  of  these  duties  the  clerk 
is  made  liable  to  the  party  injured  for  the  neglect  of  them,  and  to 
the  security  of  the  party  injured  is  superadded,  by  a  subsequent 
Statute,  the  responsibility  of  the  town.  The  index  or  alphabet, 
which,  it  is  the  duty  of  the  clerk  to  have  annexed  to  his  book,  seems 
to  be  one  of  the  facilities  to  be  used  in  making  search  for  the  record, 
not  a  part  of  the  record  itself.  It  is  his  duty  to  have  an  index, 
and  to  enter  upon  it  a  proper  reference  to  every  record  of  a  convey- 
ance, and  for  any  neglect  to  do  so,  he  and  the  town  are  liable  for 
the  damages  any  person  may  suffer  by  it.  But  it  is  not  certain  that 
any  one  will  be  injured  by  the  neglect,  and  therefore  the  record  itself 
should  not  be  void.  The  clerk  may  know  the  place  of  the  record 
and  m^ay  point  it  out  to  all  who  may  wish  to  examine  it.  A  pur- 
chaser may  take  his  deed,  relying  alone  upon  the  representations  or 
covenants  of  his  grantor,  without  desiring  to  examine  the  records. 
An  index,  or  the  want  of  it,  would  seem  to  be  of  no  ini])()i'taiice  to 
him.  So  if  without  making  any  search  or  causing  any  to  be  made, 
a  purchaser  should  rely  solely  on  the  representations  of  the  clerk, 
that  the  title  was  clear,  and  those  representations  should  be  know- 
ingly false,  it  is  perhaps  questionable  whether  he  could  be  said  to 
be  injured  by  the  want  of  an  index.  That  would  only  seem  to  become 
important  when  an  actual  search  of  the  records  was  desired  to  be 
made.  The  legitimate  ground  of  com]>laiiit  in  such  case  would  prob- 
ably be  the  fraudulent  representations  of  the  clerk. 

There  are  many  practical  difficulties  in  the  way  of  making  an  in- 
dex to  the  record  an  essential  requisite  to  the  validity  of  the  title. 
The  Statute  provides  for  an  "  index  or  alphabet."  Are  the  two  words 
used  synonymously?  Or  have  they  here,  as  they  often  have,  differ- 
ent meanings?  Is  it  indispensable  that  the  index  should  be  in  alpha- 
betical order?  If  so,  shall  the  name  of  the  grantor  or  the  grantee 
be  alphabetted?  Or  shall  there  be  two  indexes,  one  of  each?  Must 
the  Christian  name  be  written  at  length,  or  will  the  initials  be  suffi- 
cient? It  is  obvious,  that  if  an  index  is  held  to  be  an  essential  part 
of  the  record,  the  way  will  at  once  be  opened  for  a  serious  and  em- 


680  GEORGE   AND   EDWARD    CURTIS    V.    LYMAN        [CHAP,   XI 

barrassing  course  of  litigation  in  settling  by  judicial  construction, 
what  shall  constitute  a  sufficient  index,  and  what  departures  from  a 
prescribed  form  shall  render  the  record  invalid.  And  all  this,  per- 
haps, when  there  has  been  no  real  injury  to  any  one  in  consequence 
of  a  defective  index. 

But  if  from  the  want  of  an  index,  or  a  proper  entry  upon  it,  the 
record  is  to  be  inoperative,  shall  it  be  held  absolutely  void?  If  the 
reference  to  it  upon  the  index  be  not  made  the  instant  the  record  is 
completed,  is  the  record  a  mere  nullity?  Or  may  the  record  be 
restored  and  made  operative  by  a  subsequent  entry  upon  the  index? 
If  so,  when  does  the  record  take  effect?  If  from  the  entry  on  the 
index,  how  is  the  true  time  to  be  shown?  Shall  the  clerk  certify 
upon  the  record  the  time  of  the  entry?  That  has  never  been  done. 
The  true  time  the  record  takes  effect  must  then  in  all  cases  be  left 
open  to  be  proved  by  parol!  In  this  case  it  appears  by  the  evidence 
of  the  town  clerk,  that  the  plaintiff's  mortgage  was  first  alphabetted 
some  time  in  August  or  September,  1844. 

This  evidence  is  quite  too  loose  and  uncertain,  from  which  to 
determine  when  a  record  is  to  become  operative,  as  all  parol  evidence 
necessarily  must  be.  It  is  obvious,  that  if  an  entry  of  a  deed  upon 
the  index  is  held  to  be  essential  to  the  validity  of  the  record,  that  it 
must  necessarily  lead  to  inextricable  confusion  and  uncertainty  in 
regard  to  the  priority  of  conveyances.  Indeed,  the  difficulties  in 
the  way  of  a  decision  to  that  effect,  appear  to  us  to  be  insurmount- 
able. On  the  other  hand,  we  do  not  perceive  but  that  the  object  of 
the  Statute's  providing  for  the  recording  of  deeds  will  be  fully  an- 
swered by  leaving  anybody,  actually  sustaining  an  injury  from  the 
want  of  an  index,  or  by  a  defective  one,  to  his  Statute  remedy  against 
the  clerk  and  the  towns. 

The  case  of  Sawyer  v.  Adam^,  8  Vt.  R..172,  has  been  relied  upon 
by  the  defendants'  counsel,  as  having  an  important  bearing  upon  the 
question  in  this.  But  our  decision  does  not  conflict  with  the  law  of 
that  case.  The  facts  in  that  case  were  peculiar.  From  them,  the 
court  found  that  there  had  been  in  effect  no  record  of  the  deed  upon 
the  book  of  records.  Chief  Justice  Williams,  in  delivering  the 
opinion  of  the  majority  of  the  court,  puts  the  case  upon  that  ground.. 
He  says,  "  that  recording  means  the  copying  the  instrviment  to  be 
recor(^ed  into  the  public  records  of  the  town,  in  a  book  kept  for  that 
purpose,  by  or  under  the  superintendence  of  the  officer  appointed 
therefor."  This,  the  court  held,  had  not  in  that  case  been  done. 
But  it  had  clearly  been  done  in  this  case.  The  deed  was  copied  by 
the  town  clei'k  into  the  proper  book,  in  the  proper  place,  and  duly 
certified  as  recorded,  which  would  doubtless  have  been  held  by  the 
court  at  that  time,  to  have  been  sufficient. 

"We  are  all  agreed  that  the  proper  office  of  the  index  is,  what  its 
name  imports,  to  point  to  the  record,  but  that  it  constitutes  no  part 
of  the  record;  and  we  must  consequently  hold,  that  the  plaintiff's 


SECT.    II  ]  BARNEY    V.    MCCARTY  681 

mortgage  became  an  encumbrance  upon  the  land  from  the  time  it 
was  transcribed  upon  the  record,  and  that  the  defendant  Lyman  took 
his  title  subject  to  it. 

The  result  is,  that  the  decree  of  the  Court  of  Chancery  is  to  be 
affirmed,  with  directions  to  that  court  to  fix  upon  a  time  for  redemp- 
tion and  to  carry  this  decree  into  effect.^ 


BARNEY  V.  McCARTY  et  Al. 
15  Iowa  510.     1864. 

This  is  an  action  brought  to  foreclose  a  mortgage  upon  lot  12, 
block  29,  City  of  Keokuk,  executed  by  Jonathan  McCarty,  to  Marsh, 
Lee,  &  Delavan,  for  balance  of  purchase  money,  and  which  has  now 
become  the  property  of  petitioner. 

The  mortgage  was  dated  23d  of  October,  1847,  duly  acknowledged 
25th  of  October,  1847,  filed  in  the  recorder's  office  of  Lee  County  for 
record  on  the  17th  day  of  December,  1847,  and  was  recorded  at 
large  on  the  7th  day  of  January,  1848,  in  book  2,  page  186,  being 
in  its  proper  order  and  place  in  said  records;  and  on  the  original 
instrument  is  indorsed  a  memorandum  of  the  date  of  filing,  date  and 
book  and  page  of  the  record,  which  is  signed  by  the  recorder,  all  in 
the  manner  required  by  law.  All  this  is  admitted ;  but  it  a})pears  no 
index  to  the  said  record  was  made  until  after  this  suit  was  com- 
menced, which  was  in  January,  1859.  In  the  mean  time  said  Mc- 
Carty had  sold  said  lot,  and  the  several  defendants  have  become 
owners  of  parts  thereof,  who  now  claim  to  be  innocent  purchasers  for 
value,  without  notice.  In  an  amended  petition,  all  defendants  are 
charged  with  having  personal  notice,  but  the  proof  taken  fails,  it 
is  admitted,  to  bring  this  home  to  any  except  Wm.  and  K.  L.  Knd- 
dick  and  Guy  Wells. 

The  District  Court  rendered  a  personal  judgment  against  McCarty, 
the  mortgagor,  but  refused  to  decree  said  lot  or  any  part  thereof  to  be 
sold  to  pay  said  mortgaged  indebtedness.  From  this  the  plaintiff 
appeals,  and  holds  that  the  court  should  have  ordered  said  lots  to  be 
sold  to  pay  the  purchase-money  due  him. 

Dillon,  J.  I.  The  first  ground  upon  which  the  appellant  seeks 
to  reverse  the  decree  below  is,  that  the  defendants,  Wm.  and  R.  L. 
Ruddick  and  Guy  Wells,  had  actual  notice  of  the  mortgage  in  suit 
at  the  time  when  they  respectivi'ly  purchased  tlic  ])ortions  of  the 
lot  now  owned  by  them. 

This  question  cannot  for  several  reasons  be  examined  in  this  court. 
By  the  Revision  (§  3000)  mortgages  are  to  be  foreclosed  as  in  cases 
of  ordinary  proceedings;  and  by  section  2999  the  court  on  appeal 

1  Accord,  Chatham  v.  Bradford,  50  Ga.  327;  Bishop  v.  Schneider,  46  Mo. 
472;  Mutual  Life  Im.  Co.  v.  Dakc,  87  N.  Y.  257;  Armstrong  v.  Aiu^tin,  45 
S.  C.  69 


682  BARNEY    V.    MCCARTY  [CHAP.   XI 

"shall  try  only  the  legal  errors"  [of  the  cause]  "duly  presented, 
as  in  a  case  of  ordinary  proceedings,  including  the  sufficiency  of 
the  facts  stated  on  the  record  as  the  basis  of  the  judgment  to  warrant 
the  same." 

As  to  Guy  Wells,  the  record  does  not  show  that  there  w^as  any 
finding  of  the  facts,  either  by  a  jury  or  by  the  court,  as  required  by 
the  last  cited  section  of  the  Revision.  As  to  the  Messrs.  Ruddick  an 
issue  was  made  to  a  jury,  who  found  that  they  had  no  notice  inde- 
pendent of  the  record  of  the  mortgage  in  suit  at  the  time  when  the 
deed  of  trust  under  which  they  claim  was  executed.  No  exception 
was  taken  to  this  finding  of  the  jury  and  no  motion  was  made  to  set 
the  same  aside  as  being  against  the  weight  of  evidence  or  for  any 
other  cause.  There  is,  therefore,  no  "  legal  error  duly  presented  " 
to  the  appellate  court  for  its  review  so  far  as  relates  to  the  question 
of  actual  notice.  See  Docterman  v.  Webster,  decided  at  the  present 
term. 

II.  It  is  furthermore  claimed,  by  the  plaintiff,  that  Ruddick  is  not 
a  bona  fide  purchaser,  because,  on  the  day  on  which  he  purchased 
under  his  deed  of  trust  and  before  the  completion  of  such  purchase, 
he  was  notified  by  the  plaintiff's  agent  of  the  existence  of  the  mort- 
gage in  suit.  The  fact  of  such  a  notice  is  conceded,  and  the  only 
question  which  arises  is,  what  effect,  if  any,  it  will  have  upon  Rud- 
dick's  rights?  To  sustain  his  position,  the  plaintiff  refers  to  Thomas 
v.  Graham,  Walk.  Ch.  118;  Jeweti  v.  Pahner,  7  John.  Ch.  65;  and 
Miner  v.  Willoughby,  3  Minn.  239;  w^hich  are  to  the  effect  that 
"  A  plea  of  a  bona  fide  purchaser,  wdthout  notice,  must  aver  not  only 
a  want  of  notice  at  the  time  of  the  purchase,  but  also  at  the  time 
of  its  completion,  and  of  the  payment  of  the  money.  The  money 
must  be  actually  paid  before  notice."  Many  other  cases  might  be 
referred  to,  establishing  the  same  principle. 

But,  unfortunately  for  the  plaintiff,  his  case  does  not  fall  within 
the  reason  upon  which  this  principle  is  based.  If  Ruddick  had  no 
notice  .at  the  time  when  he  advanced  his  money  and  received  his 
deed  of  trust  in  security  therefor,  no  subsequent  notice  can  affect  him 
or  in  any  way  cut  down  his  rights.  He  is  in  law  considered  as 
occupying  as  high  ground  as  an  absolute  purchaser,  from  the  mo- 
ment he  parts  with  his  money.  Mortgagees  are  within  the  protection 
of  the  Statute,  as  well  as  purchasers.  (R.  S.,  1843,  p.  208,  §  30; 
Code,  1851,  §§  1211-1214;  Porter  et  air.  Green  et  al.,  4  Iowa,  571). 

III.  We  now  arrive  at  the  principal  and  most  important  question 
in  the  cause,  and  that  is,  whether  the  defendants  are  affected  with 
constructive  notice  of  the  plaintiff's  mortgage. 

And  this  raises  but  one  inquiry,  viz.,  whether  under  the  registra- 
tion laws  then  in  force,  the  total  omission  by  the  recorder  to  index 
this  mortgage,  deprived  the  record  thereof  of  the  power  of  imparting 
constructiA'e  notice  of  its  existence  and  contents. 

The  prior  decisions  of  this  court,  although  not  covering  a  case 


SECT.    II ]  BARNEY    V.    MC'CARTY  683 

precisely  like  the  present,  aid  nevertheless  most  materially  in  its 
solution.  In  other  States  there  exists  a  most  perplexing  conflict  of 
authority  respecting  the  question  whether  the  grantee  in  an  instru- 
ment;, or  a  subsequent  purchaser,  shall  suffer  for  the  mistake  or 
omission  of  the  recorder  in  registering  it,  or  neglecting  to  register  it. 
By  some  courts  it  is  considered,  that  where  the  party  has  duly  de- 
posited his  deed  with  the  proper  officer  for  record,  he  has  performed 
his  whole  duty,  and  consequently  the  subsequent  mistake  or  neglect 
of  the  recorder  will  not  affect  him  or  invalidate  his  title.  (Nichols 
V.  Reynolds,  1  R.  I.,  30,  31 ;  Cook  v.  Hall,  1  Gilm.,  575 ;  2  Sug.  Ven., 
466;  Merricl-  v.  Wallace,  19  111.,  486;  McGregor  v.  HaJl,  3  S.  &-  P., 
401;  10  Ala.,  388;  Beverly  v.  Ellis,  1  Rand.  [Va.],  100.) 

In  the  case  last  cited,  the  court  went  so  far  as  to  hold,  that  where 
a  deed  is  filed  for  record,  it  is  in  contemplation  of  law  recorded, 
though  it  should,  in  consequence  of  being  stolen,  never  be  entered 
upon  the  record.  But  the  current  of  authority  is  otherwise,  hold- 
ing it  to  be  the  duty  of  the  party  filing  the  instrument,  as  betAveen 
him  and  a  subsequent  bona  fide  purchaser,  to  see  that  all  of  the 
pre-requisites  of  a  valid  and  complete  registration  are  complied  with. 
(Frost  V.  Beehman-,  1  John.  Ch.,  288;  10  John.,  544;  Jennings  v. 
Wood,  20  Ohio,  261;  8  Verm.,  175;  1  Story's  Eq.  Jur.,  §  404;  10 
Verm.,  555.)  And  this  question,  conceded  not  to  be  free  from  diffi- 
culty, was  upon  solemn  deliberation  settled  in  this  court  in  Miller  v. 
Bradford,  et  al.,  12  Iowa,  14.  With  this  decision  we  are  content, 
and  the  question  cannot  be  regarded  as  being  any  longer  an  open  one 
in  this  State.  Agreeably  to  the  doctrine  there  established,  it  was 
the  duty  of  the  mortgagee  of  the  instrument  in  suit,  to  see  that  the 
essential  requirements  of  the  registry  law  were  observed;  for,  unless 
substantially  observed,  the  registry  thereof  would  not  impart  con- 
structive notice  to  subsequent  mortgagees  or  purchasers,  and  conse- 
quently the  loss,  if  any,  will  fall  upon  him  or  his  assignee,  and  not 
upon  them. 

■  We  now  advance  one  step  further,  witli  a  view  to  ascertain  whether 
the  indexing  of  the  mortgage  was  an  essential  requirement  of  the 
Statute.  The  mortgage  in  question  was  executed  and  filed  for  record 
during  the  time  when  the  Revised  Statutes  of  1843  ("The  Blue 
Book  ")  were  in  force.  There  are  three  Acts  which  relate  to  this 
subject,  viz.:  1st.  Section  30  of  the  Act  of  February  16,  1843  (R.  S., 
202),  entitled  "An  Act  to  regulate  Coiweyances."  2d.  Sections  3 
and  4  of  the  Act  of  February  14,  1843  (R.  S.,  442),  entitled,  "An 
Act  concerning  Mortgages."  3d.  Section  4  of  the  Act  of  January 
23d,  1843  (R.  S.,  .^)41),  entitled  "An  Act  relating  to  the  Office  of 
Recorder  of  Deeds." 

These  laws  were  all  passed  at  the  same  session,  jind  witliin  ;i  month 
of  each  other.  Being  in  pari  materia,  they  are  not  only  to  be  con- 
strued together,  but  to  be  construed,  if  it  can  fairly  and  reasonably 
be  done,  so  as  to  give  operation  and  effect  to  each. 


684  BARNEY    V.    Mf^CARTY  [CHAP.   XI 

Taking  these  Acts  as  a  whole,  they  v(!ry  clearly  point  out  the  succes- 
sive steps  which  together  constitute  a  complete  and  therefore  valid 
registration  of  an  instrument.  As  constructive  notice,  by  means  of 
recorded  instruments,  depends  wholly  upon  statutory  provisions,  it 
is  necessary  carefully  to  examine  those  provisions.  As  concerns  the 
present  inquiry,  the  substance  of  the  Act  of  February  16,  1843,  is, 
that  the  proper  instrument  "  shall  be  recorded  in  the  office  of  the 
recorder  of  the  county  in  which  the  real  estate  is  situated."  (§  29), 
and  ''shall  (§  30),  from  the  time  of  filing  the  same  with  the  re- 
corder, impart  notice  to  all  persons  of  the  contents  thereof." 

While  provision  is  thus  made  as  to  the  effect  of  filing,  no  provi- 
sion is  made  as  to  the  manner  of  filing,  or  noting,  or  mode  of  record- 
ing. The  Act  of  February  14,  §  2  (R.  S.,  442),  after  repeating 
almost  literally  the  above  language,  as  to  the  effect  of  filing,  proceeds, 
in  the  next  section  (3),  thus  to  point  out  the  duty  of  the  recorder: 
"  It  shall  be  the  duty  of  the  recorder  to  indorse  on  every  mortgage 
filed  in  his  office  for  record,  and  note  in  the  record  the  precise  time 
such  mortgage  was  filed  for  record." 

By  analyzing  the  fourth  section  of  the  Act  of  January  23,  1843, 
it  will  be  seen  that  the  recorder  is  required  to  perform  the  following 
acts,  not  only  with  respect  to  mortgages,  but  all  instruments 
authorized  to  be  recorded : 

1.  "  File  all  deeds,  <S:c.,  presented  to  him  for  record,  and  note  on 
the  back  of  the  same  the  hour  and  day  when  they  were  presented  for 
record." 

2.  "  Keep  a  fair  book  on  which  he  shall  immediately  make  an 
entry  of  every  deed,  giving  date,  parties,  description  of  land,  dating 
it  on  the  day  when  it  was  filed  at  his  office." 

3.  "  Record  all  instruments  in  regular  succession." 

4.  "  Make  and  keep  a  complete  alphabetical  index  to  each  record 
book,  showing  page  on  which  each  instrument  is  recorded,  with  the 
names  of  the  parties  thereto." 

This  Act  is  silent  as  to  the  time  when  notice  commences,  but  ic 
specific  as  to  the  mode  of  making  and  keeping  the  registry. 

Reading  these  various  Statutes  together  in  the  light  of  the  known 
objects  of  registration  laws,  the  court  is  of  opinion  that  each  of  the 
following  steps  is  necessary  to  be  substantially  observed,  in  order  to 
constitute  a  compliance  with  their  requirements : 

1.  The  instrument  must  be  deposited  or  filed  with  the  recorder 
for  record.  He  thereupon  notes  the  fact  and  "  the  hour  and  day  " 
on  the  back  thereof,  and  the  day  on  "  the  fair  book,"  as  it  is  styled, 
and  retains  the  instrument  in  his  office.  The  instrument  itself  thus 
remaining  on  file  in  his  office,  with  the  indorsement  upon  it,  and  the 
entries  in  the  "  fair  book,"  which  are  required  to  be  immediately 
made,  constitute  the  notice  until  the  instrument  is  actually  extended 
upon  the  records. 

2.  The  next  step  in  the  process  is  the  recording,  that  is,  the  copying 


SECT.    Il]  BARNEY    V.    MCCARTY  685 

of  the  instrument  at  large  into  the  "  record  book,"  and  noting  in  it 
the  precise  time  when  it  was  filed  for  record.  The  object  of  this 
noting  is  that  the  record  may  show  on  its  face  when  the  notice 
commences. 

3.  The  third  and  final  step  is  the  indexing  of  the  instrument  so 
recorded.  The  Statute  prescribes  the  requisites  of  the  index.  It 
shall  be  a  complete  alphabetical  index  to  each  record  book,  and  shall 
give  the  names  of  the  parties,  and  show  the  page  where  each  instru- 
ment is  recorded.  The  paging  cannot,  of  course,  be  given  until  the 
deed  is  actually  transcribed  into  the  record  book,  and  up  to  this  time 
it  remains  on  file.  When  recorded  and  indexed,  the  deed  may  be 
withdrawn,  and  the  record  takes  its  place  and  constructively  imparts 
notice  to  the  world  of  its  existence  and  contents. 

Keeping  in  view  alike  the  well-known  objects  and  the  enlightened 
policy  on  which  the  Kegistry  Acts  are  based,  as  well  as  the  language 
and  requirements  of  the  several  Statutes  above  cited,  the  court  are 
of  the  opinion,  that  all  three  of  these  steps  are  essential  integral 
parts  of  a  complete  valid  registration.  It  follows  that,  inasmuch  as 
the  plaintiif' s  mortgage  was  never  indexed  at  all  until  after  the 
defendant's  right  attached,  the  record  thereof  was  so  incomplete  and 
defective  as  not  constructively  to  charge  subsequent  purchasers  or 
mortgagees  with  notice. 

And  having  stated  the  result,  we  might  here  properly  conclude, 
were  it  not  due  to  the  elaborate  research  of  counsel,  as  evinced  in 
their  arguments,  that  we  should  state  somewhat  more  at  large  the 
reasons  for  our  opinion. 

The  plaintiff's  counsel,  looking  at  a  detached  portion  of  these 
Acts,  rests  his  case  wholly  upon  the  statutory  declaration,  that  notice 
of  the  existence  of  the  mortgage  shall  date  "  from  the  time  the  sam,e 
is  filed  in  the  recorder's  office  for  record."  As  the  filing  is  but  one 
step  in  a  series  of  steps,  this  language  presupposes,  and  is  in  fact 
based  upon  the  assumption  that  the  other,  and  in  the  order  of  time, 
the  subsequent  requirements  of  the  law,  will  be  observed.  We  ask 
this  question :  Would  the  mere  filing  be  notice,  if  the  instrument 
were  never  recorded,  and  if  the  grantee  should  voluntarily  withdraw 
it  before  registration?  Certainly  not;  and  yet  the  literal  construc- 
tion which  is  insisted  on  by  the  plaintiff  would  so  require  us  to  hold. 

Again:  The  meaning  of  this  language  has  been  determined  by  the 
recent  decision  of  Miller  v.  Bradford  et  al.,  12  Iowa,  14.  "This 
Statute,"  says  Wright,  J.,  "  in  our  o])inion,  was  only  intended  to  fix 
the  time  from  which  notice  to  subsequent  purchasers  Avas  to  com- 
mence, and  not  to  make  such  filing  or  depositing  notice  of  the  con- 
tents after  the  same  was  recorded."  The  correctness  of  this  view 
is  supported  by  both  reason  and  authority.  Without  this  provision, 
it  would  remain  uncertain  whether  notice  dated  from  time  of  filing, 
or  only  from  the  time  of  actual  registration;  and  to  settle  and  fix 
this  most  material  matter  was  the  cardinal  and  primary  design  of 


686  BARNEY    V.    MCCARTY  [CHAP.   XI 

the  Legislature.  See  on  this  point  Barney  v.  Little  et  al.,  decided 
at  the  present  term. 

"We  are  referred  to  the  case  of  Cooh  v.  Hall,  1  Gilm.,  575,  as  being 
against  the  view  we  have  taken.  It  is  true  that  the  Illinois  Statutes 
are  the  same  as  ours,  and  the  case  is  apparently,  but  yet  not  really, 
in  point.  The  deed  in  that  case  was  deposited  with  a  deputy  recorder 
de  facto,  who  omitted  to  enter  it  on  the  "  fair  book  "  provided  for 
by  the  law,  but  the  deed  itsedf  remained  on  file.  The  court  held 
that  it  was  notice  from  the  time  of  filing  the  same,  and  that  the 
requisition  about  the  entry  in  the  ''  fair  book  "  was  only  directory. 
The  case  did  not  turn  on  the  necessity  of  an  alphabetical  index,  after 
the  deed  was  registered  and  withdrawn.  Besides  this  case,  as  well 
as  the  subsequent  one  of  Merricl-  v.  Wallace,  19  111.  486,  in  the 
reasons  given  for  the  decision,  conflicts  with  the  doctrine  of  this 
court  in  Miller  v.  Bradford,  supra,  inasmuch  as  it  is  considered  that 
any  omission  or  fault  of  the  recorder  must  fall  upon  a  subsequent 
purchaser,  and  not  upon  the  party  who  files  the  instrument  for 
record. 

Plaintiff  also  relies  upon  Curtis  v.  Li/man,  24  Vt.  334.  The  court 
in  this  case,  under  a  Statute  which  provided  "  That  a  book  or  books, 
ruith  an  index  or  alphahet  to  the  same,  suitable  for  registering  deeds, 
&c.,  shall  be  kept  in  each  town,  in  which  the  clerk  should  truly  re- 
cord all  deeds,"  &c.,  held,  that  an  innocent  party  was  affected  with 
notice  of  a  mortgage  which,  though  duly  recorded,  was  never  indexed. 
In  setting  forth  the  reasons  for  this  decision,  the  court  says : 

"  It  is  obvious  that  if  an  index  is  held  to  be  an  essential  part  of  the 
record,  the  way  will  at  once  be  opened  for  a  serious  and  embarrassing 
course  of  litigation  in  settling,  by  judicial  construction,  what  shall 
constitute  a  sufficient  index,  and  what  departures  from  a  prescribed 
form,  shall  render  the  record  invalid;  and  all  this  perhaps  when 
there  has  been  no  real  injury  to  any  one  in  consequence  of  a  defec- 
tive index.  But  if,  from  the  want  of  an  index,  or  a  proper  entry 
upon  it,  the  record  is  to  be  inoperative,  shall  it  be  held  absolutely 
void  ?  If  the  reference  to  it  upon  the  index  be  not  made  the  instant 
the  record  is  completed,  is  the  record  a  mere  nullity?  Or  may  the 
record  be  restored  and  made  operative  by  a  subsequent  entry  upon 
the  index?  If  so.  When  does  the  record  take  effect?  .  .  .  We  are 
all  agreed  that  the  proper  office  of  the  index  is  to  point  to  the  record, 
but  that  it  constitutes  no  part  of  the  record."  As  oui'  Statute  pre- 
scribes the  requisites  of  the  index  which  it  requires,  these  reasons 
would  not  be  applicable  to  it. 

With  us  the  practice  has  always  been  to  search  for  titles  through 
the  names  of  the  successive  owners,  and  by  means  of  the  index. 
With  us  alienations  of  real  estate  are  easy  and  numerous.  There  is 
not,  as  in  Vermont,  a  registry  in  each  town,  but  only  one  for  each 
county.  The  record  books  are  consequently  numerous  and  volumi- 
nous.    It  is  utterly  impracticable  to  examine  them  page  by  page. 


SECT.    II ]  BARNEY    V.    MCC.4RTY  687 

It  is  stated  in  the  argument  that  the  record  books  in  Lee  County 
already  number  some  thirty  volumes.  An  index  is  a  necessity. 
The  evidence  in  this  case  shows  that  an  index  was  kept,  but  for  some 
reason  the  mortgage  in  this  suit  was  wholly  omitted  from  it.  If  no 
index  was  required  or  kept,  a  searcher  for  titles  would  know  what 
he  had  to  do.  But  if  one  is  kept,  and  if  a  given  instrument  is 
omitted  and  yet  the  record  affects  the  purchaser  with  notice,  it  is  a 
snare  which  will  entoil  the  most  diligent  and  careful. 

A  deed,  in  the  language  of  counsel,  might  as  well  be  "  buried  in 
the  earth  as  in  a  mass  of  records  without  a  clew  to  its  whereabouts," 
or  in  the  language  of  the  Supreme  Court  of  Vermont,  in  Sawyer  v. 
Adams,  8  Verm.,  172,  the  instrument  might  as  well  be  written  "on  a 
slate  or  copied  into  the  recorder's  FamiW  Bible,  as  into  a  book 
without  being  indexed." 

We  are  also  cited  to  McLaren  v.  Thompson,  40  Maine,  284.  This 
case  and  Handlei/  v.  Iloire,  22  Maine,  5G0,  are,  as  they  seem  to  us, 
confirmatory  of  our  position.  The  Statute  required  "  a  noting  on 
the  book  and  on  the  mortgag(^  of  tlie  time  wlicii  the  same  was 
received." 

The  court  (40  Maine,  284)  says:  "As  there  is  an  interval,  longer 
or  shorter  as  the  case  may  be,  between  the  delivery  of  an  instrument 
to  be  recorded,  and  the  recording  of  the  same,  the  object  of  the  above 
provision  of  the  Statute  is  to  protect  the  grantee,  during  the  time 
between  the  noting  and  recording.  The  Statute,  it  will  be  seen,  re- 
quired the  noting  both  on  the  mortgage  and  the  book;  and  provided 
that  the  instrument  "  should  be  considered  as  recorded,  when  left 
with  the  clerk  as  aforesaid."  It  was  held,  that  a  noting  on  both  was 
essential  to  make  it  constructive  notice  against  an  attachment  levy. 
Handley  v.  Howe,  22  Maine,  560. 

The  analogies  of  the  law  support  our  view.  Thus,  an  undocketed 
judgment  is  no  notice.     2  Sug.  Ven.,  104. 

To  hold  that  an  index  is  not  essentially  part  of  a  valid  and  com- 
plete registration  in  this  State,  would  overlook  the  uniform  })ractlce 
of  relying  wholly  upon  it  to  find  the  names  of  the  various  owners 
in  tracing  titles,  and  would  also  ignore  the  fundamental  design  of 
the  Recording  Acts,  which  is  to  give  certainty  and  security  to  titles, 
by  requiring  all  deeds  and  all  liens  to  be  made  matters  of  public 
record,  and  thus  discoverable  by  all  persons  who  are  interes^ted  in 
ascertaining  their  existence  and  who  will  examine  the  records  in 
the  mode  which  the  law  has  pointed  out.  Cummings  v.  Long, 
16  Iowa,  41  Decree  affirmed} 

1  And  see  Prouty  v.  Mor.«haU,  225  Pu.  570;  nirtiir  v.  arifTiHis,  1  Wa.«;h.  429. 

Note — Compare  Loser  v.  Plainficld  Bank,  149  Town  672;  Gillespie  v. 
Rogers,  146  Mass.  610;  Hillside  Bank  v.  Cavanam/h.  232  Mass.  157;  Saiddge 
V.  Seager,  175  Mich.  47;  Lrinbeck  Co.  v.  Barbi,  90  N.  J.  Eq.  373.  91  N.  J. 
\]q.  533;  Bums  v.  Ross,  215  Pa.  293;  Crippcn  v.  Bcrgold,  258  Pa.  469. 


688  GEORGE    V.    WOOD  [CHAP.   XI 

GEORGE  V.  WOOD 
9  All.  (Mass)  80.     1864. 

Bill  in  equity  to  redeem  land  from  a  mortgage.  After  the  former 
decision  in  this  case,  reported  in  7  Allen,  14,  the  parties  agreed  upon 
the  following  facts :  — 

On  the  8th  of  August,  1853,  Nathaniel  Chessman,  being  seised  of 
a  tract  of  land  in  Milford,  mortgaged  it  to  Asa  Wood,  the  defend- 
ant's intestate,  to  secure  the  sum  of  $1000,  which  has  never  been 
paid,  unless  the  release  hereinafter  mentioned  from  the  defendant  to 
Chessman  operated  as  a  payment  of  the  same.  Asa  Wood  after- 
wards died,  and  the  defendant  was  appointed  administratrix  of  his 
estate  about  the  1st  of  January,  18.56.  On  the  12th  of  May,  1855, 
Chessman  mortgaged  a  part  of  the  land,  described  as  bounded  on 
land  of  Daniel  Finley,  with  full  covenants  of  warranty,  to  the  plain- 
tiff, to  secure  the  sum  of  $1500,  which  remains  wholly  unpaid.  This 
mortgage  w^as  duly  recorded  in  May,  1855.  On  the  4tli  of  August, 
1856,  Chessman  conveyed  another  portion  of  the  land  to  Crawford 
Pierce,  by  deed  of  warranty,  duly  recorded  on  the  20th  of  !N"ovember, 
1856.  On  the  26th  of  February,  1857,  Chessman  conveyed  another 
portion  of  the  land  to  Daniel  Finley,  by  deed  of  quitclaim,  duly  re- 
corded on  the  25th  of  March,  1857.  On  the  26th  of  February,  1857, 
the  defendant  released  and  discharged  the  lot  conveyed  to  Pierce, 
describing  it  as  running  "  to  the  southerly  corner  of  land  of  Daniel 
Finley,"  from  the  operation  of  the  mortgage  to  Asa  Wood,  by  her 
deed  of  quitclaim  to  Chessman,  recorded  on  the  16th  of  March,  1857. 

In  1855  Chessman  sold  to  Finley  the  lot  described  in  the  deed 
to  the  latter,  of  February  26th,  1857;  and  Finley  claimed  to  have 
had  a  warranty  deed  therof,  which  was  lost. 

There  was  no  evidence  that  the  defendant,  at  the  time  of  executing 
her  release'  to  Chessman,  had  any  actual  knowledge  of  the  convey- 
ance to  the  plaintiff,  or  of  that  to  Finley. 

The  case  was  reserved  by  Chapman,  J.,  for  the  determination  of 
the  whole  court. 

Hoar,  J.  It  must  be  considered  as  settled  that  when  the  owner 
of  an  equity  of  redemption  conveys  by  deed  of  warranty  a  part  of  the 
mortgaged  premises,  neither  he,  nor  his  heirs,  nor  subsequent  grantees 
with  notice  of  the  remaining  part  of  the  mortgaged  premises,  are 
entitled  in  equity  to  contribution  from  the  first  grantee,  toward 
payment  of  the  mortgage  debt.  Chase  v.  Woodbury,  6  Cush.  143. 
Bradley  v.  George,  2  Allen,  392.  George  v.  Kent,  7  Allen,  16.  Kil- 
horn  V.  Rohhins,  8  Allen,  466.  The  land  remaining  in  the  mortgagor 
is  first  chargeable;  and  the  equity  of  his  vendee  will  be  enforced 
against  any  subsequent  purchaser  from  him  with  notice.  Alien  v. 
Clark,  17  Pick.  47. 


SECT.    II  ]  GEORGE    V.    WOOD  689 

The  weight  of  authority  seems  to  be  that  this  equity  of  a  pur- 
chaser from  the  mortgagor  is  one  which  the  mortgagee  must  regard, 
if  he  has  actual  or  constructive  notice  of  it.  rarkman  v.  ^Velch,  19 
Pick.  231.  Brown  v.  Simons,  44  N,  H.  475.  1  Washburn  on  Keal 
Prop.  572,  and  cases  cited.  4  Kent  Com.  (8th  ed.)  189,  n.  If  the 
mortgagee,  therefore,  releases  a  part  of  the  mortgaged  estate  to  a 
purchaser,  he  must  abate  a  proportionate  part  of  the  mortgage  debt, 
if  it  be  necessary  to  protect  a  prior  purchaser,  of  whose  title  he  had 
notice  when  he  made  the  release.  The  equities  between  successive 
purchasers  from  the  mortgagor  will  be  in  the  order  in  which  they 
take  their  conveyances,  if  the  subsequent  purchasers  have  notice  of 
those  which  precede.  Guion  v.  Knapp,  6  Paige,  35.  Clowes  v. 
Dickenson,  5  Johns.  Ch.  235 ;  s.  c.  9  Cow.  403. 

These  principles  must  govern  the  rights  of  the  parties  to  this  suit ; 
and  the  first  question  is,  whether  the  defendant,  when  she  executed 
the  release  of  the  lot  purchased  by  Pierce,  had  notice  of  tlie  prior 
conveyance  to  the  plaintiff.  His  conveyance  was  on  record,  which 
he  contends  was  constructive  notice.  The  release  was  to  the  original 
mortgagor,  and  there  is  no  proof  of  any  other  notice  than  the  record 
of  the  plaintiff's  deed.  It  has  been  held  in  New  York  that  the  record- 
ing of  a  second  mortgage  is  not  constructive  notice  to  the  mortgagee 
under  a  first  recorded  mortgage.  Wheelwright  v.  Depeyster,  4  Edw. 
Ch.  232.  Talmadge  v.  Wilgers,  lb.  239,  n.  Cheesehrough  v.  Millard, 
1  Johns.  Ch.  409.  Stuyvesant  v.  Hone,  1  Sandf.  419.  The  same 
doctrine  has  prevailed  in  Pennsylvania.  Taylor  v.  Maris,  5  Rawle, 
51.  And  it  was  adopted  by  Mr.  Justice  McLean,  of  the  Supreme 
Court  of  the  United  States.     3  McLean,  603. 

The  question  is  not  free  from  difficulty,  but  we  are  not  aware  of 
any  adjudged  case  to  the  contrary;  nor  indeed  of  any  case  in  which 
the  record  of  a  deed  has  been  held  to  be  constructive  notice  to  any 
persons  other  than  subsequent  purchasers,  or  those  claiming  title 
under  the  same  grantor.  2  White  Sz  Tudor's  Lead.  Cas.  in  Eq. 
(Amer.  ed.)  193.  In  Parkman  v.  Welch,  uhi  supra,  it  is  to  be  ob- 
served that  no  question  seems  to  have  been  suggested  in  the  argument 
or  decision  as  to  the  necessity  of  any  notice  to  the  mortgagee;  and 
no  allusion  is  made  in  the  opinion  to  the  effect  of  any  prior  equity 
resulting  to  the  prior  purchaser  from  the  mortgagor.  The  case 
apparently  rests  upon  the  idea  that  all  parts  of  the  niortgnged  prem- 
ises were  equally  liable  to  contribute  in  ])roporti(in  to  tlicir  value, 
in  the  hands  of  separate  purchasers,  without  regard  to  ])riority; 
and  that  the  release  of  one  parcel  by  the  mortgagee  would  l)e  a  dis- 
charge pro  fan  to  of  the  mortgage.  In  these  respects  it  is  not  easy 
to  see  how  the  case  can  be  reconciled  with  Allen  v.  Clark:  and  it  is 
certainly  inconsistent  with  the  recent  decisions  of  this  court  to  wliicli 
reference  has  been  made.  But  these  points,  although  necessarily 
involved  in  the  decision,  were  not  brought  to  the  attention  of  the 
court;  and  the  case  of  Allen  v.  Clark  was  decided  before  the  justice 


690  GEORGE    V.    WOOD  [CHAP.   XI 

who  gave  tlie  opinion  in  Parkman  v.   Welch  came  upon  the  bench 
and  had  not  then  been  reported. 

In  Brown  v.  Worceder  Bank,  8  Met.  47,  the  right  of  a  prior  pur- 
chaser of  a  part  of  an  equity  of  redemption  to  exemption  from  contri- 
bution to  purchasers  of  the  residue  was  not  noticed  by  Mr.  Justice 
Wilde,  who  gave  the  opinion  in  Allen  v.  Clark,  although  it  apparently 
existed.  But  it  is  now  firmly  established  as  a  rule  in  equity  in  this 
Commonwealth. 

When,  however,  the  purchaser  seeks  to  enforce  his  equity  against 
the  mortgagee,  it  is  reasonable  to  require  strict  proof  of  notice. 
He  takes  his  title  with  full  knowledge  that  it  is  subject  to  the 
mortgage;  and  if  he  does  not  perfect  it  by  a  release,  he  ought  not  to 
subject  the  mortgagee  to  the  constant  necessity  of  investigating  trans- 
actions between  the  mortgagor  and  third  persons  subsequent  to  the 
mortgage,  in  order  to  protect  him;  Avhen  by  giving  notice  he  can  so 
easily  protect  himself.  The  establishing  of  such  mere  collateral 
equities,  which  do  not  aifect  the  legal  title,  cannot  be  considered 
as  within  the  purposes  intended  to  be  accomplished  by  the  Statutes 
for  registration  of  deeds. 

The  only  remaining  point  which  has  been  argued  relates  to  the 
priority  of  equities  between  the  plaintiff  and  Finley.  The  plaintiff 
contends  that  Finley's  title  preceded  the  grant  to  Pierce;  and  that 
the  release  to  Pierce  being  made  with  notice  of  Finley's  title,  as 
shown  from  the  recital  in  the  release  that  the  land  bounded  on  the 
corner  of  Finley's  land,  discharged  Finley  from  the  obligation  to 
pay  the  proportion  of  the  mortgage  which  should  have  been  borne 
by  the  Pierce  lot;  and  that  as  Finley's  title  was  subsequent  to  the 
plaintiif,  the  plaintiff  is  deprived  of  any  right  of  subrogation  against 
him.  But  the  facts  do  not  find  when  Finley's  title  was  acquired,  or 
his  purchase-money  paid.  The  only  deed  to  Finley,  which  it  is 
agreed  ever  existed,  was  subsequent  to  both  the  plaintiff's  and 
Pierce's.  If  the  recital  in  the  release  is  proof  of  an  earlier  title, 
the  similar  recital  in  the  plaintiff's  deed  would  prove  in  like  manner 
that  Finley  had  a  priority  over  the  plaintiff.  But  we  think  a  con- 
clusive answer  is,  that  this  question  of  contribution  cannot  be  settled 
without  making  Finley  a  party  to  the  suit,  w^hich  the  plaintiff 
has  not  done.     Avery  v.  Petten,  7  Johns.  Ch.  211.^ 

1  See  Foster  v.  Carson,  159  Pa.  477. 

Compare,  Apstein  v.  Sprow,  91  Conn.  421;  Fries  v.  Null,  154  Pa.  573; 
Camp  Mfg.  Co.  v.  Carpenter,  112  Va.  79. 


SECT.    Ill]  EARLE    V.    FISKE  691 

SECTION    III 

POSTPONEMENT     TO     UNRECORDED     DEEDS 

EARLE  V.  FISKE  and  Another 
103  Mass.  491.    1870. 

"Writ  of  entry  against  Elizabeth  L.  Fiske  (wife  of  Benjamin 
Fiske),  and  Mary  E.  Fiske,  to  recover  land  in  Maiden.  Writ  dated 
April  14,  1868.     Plea,  mil  disseisin. 

At  the  trial  in  the  Superior  Court,  before  Putnam'  J.,  these  facts 
appeared :  Nancy  A.  Fiske,  being  ownicr  of  the  demanded  premises, 
conveyed  them  to  Benjamin  and  Elizabeth  for  their  lives,  and,  sub- 
ject to  their  life  estate,  to  Mary  E.  Fiske,  by  deeds  dated  April  22, 
1864,  but  not  recorded  till  1867,  and  died  in  1865,  leaving  said 
Benjamin,  her  son,  as  her  sole  heir,  and  he  in  1866  executed  and 
delivered  to  the  demandant  a  deed  of  the  premises,  which  was  re- 
corded in  the  same  year.  Upon  these  facts,  the  judge  ruled  that 
Nancy  A.  Fiske  "  had  no  seisin,  at  her  death,  which  would  descend 
to  Benjamin  Fiske,  so  as  to  enable  him  to  convey  a  good  title  "  to 
the  demandant.  Upon  this  ruling,  the  demandant,  who  made  no 
claim  to  any  estate  less  than  a  fee  simple,  submitted  to  a  verdict 
for  the  tenants,  and  alleged  exceptions. 

Ames,  J.  The  formalities  which  shall  be  deemed  indispensable 
to  the  valid  conveyance  of  land  are  prescribed  and  regulated  by 
Statute.  A  deed  duly  signed,  sealed  and  delivered  is  sufficient,  as 
between  the  original  parties  to  it,  to  transfer  the  whole  title  of  the 
grantor  to  the  grantee,  though  the  instrument  of  conveyance  may  not 
have  been  acknowledged  or  recorded.  The  title  passes  by  the  deed, 
and  not  by  the  registration.  No  seisin  remains  in  the  grantor,  and 
he  has  literally  nothing  in  the  premises  which  he  can  claim  for  him- 
self, transmit  to  his  heir  at  law,  or  convey  to  any  other  person. 
But  w^hen  the  effect  of  the  deed  upon  the  rights  of  third  persons, 
such  as  creditors  or  hona  fdo  purchasers,  is  to  be  considered,  the  law 
requires  sometliing  more,  namely,  either  actual  notice,  or  the  further 
formality  of  registration,  which  is  constructive  notice.  It  m;iy  not 
bo  very  logical  to  say  that,  after  a  man  has  literally  parted  with  all 
his  right  and  estate  in  a  lot  of  land,  there  still  remains  in  his  hands 
an  attachable  and  transferable  interest  in  it,  of  exactly  the  same 
extent  and  value  as  if  ho  had  made  no  conveyance  whatever.  But, 
for  the  protection  of  hnna  fide  creditors  and  iturcliascrs,  the  I'ulc  lias 
been  established  that  although  an  unrecorded  deed  is  binding  u])on 
the  grantor,  his  heirs  and  (hn'isees,  and  also  upon  all  ])ersons  having 
actual  notice  of  it,  it  is  not  valid  and  eflFectual  as  against  any  other 
persons.  As  to  all  such  other  persons,  the  unrecorded  deed  is  a 
mere  nullity.     So  far  as  they  are  concerned,  it  is  no  conveyance  or 


692  EARLE    V.    FISKE  [CHAP.   XI 

transfer  which  tho  Statute  recognizes  as  binding  on  them^  or  as 
having  any  capacity  adversely  to  affect  their  rights,  as  purchasers 
or  attaching  creditors.  As  to  them,  the  person  who  appears  of 
record  to  be  the  owner  is  to  be  taken  as  the  true  and  actual  owner, 
and  his  apparent  seisin  is  not  divested  or  affected  by  any  unknown 
and  unrecorded  deed  that  he  may  have  made.     Gen.  Sts.  c.  89,  §  3. 

It  is  argued,  however,  that,  as  the  unrecorded  deed  from  Nancy 
A,  Fiske  was  valid  and  binding  upon  herself  and  her  heirs  at  law, 
nothing  descended  from  her  to  her  son  Benjamin,  and  he  had  no 
seisin  or  title  which  he  could  convey  to  the  plaintiff.  A  case  is  cited 
(Hill  V.  Meeker,  24  Conn.  211)  in  which  the  Supreme  Court  of 
Connecticut  (Hinman  and  Storrs,  JJ.)  in  1855  decided  that  a  deed 
of  land,  not  recorded  until  after  the  death  of  the  grantor,  is  valid 
against  a  purchaser  from  his  heir  at  law,  although  such  purchaser 
has  no  knowledge  of  the  existence  of  the  deed.  From  this  decision 
the  Chief  Justice  (Waite)  dissented,  saying,  "  So  far  as  my  researches 
have  extended,  this  is  the  first  case  in  the  whole  history  of  our 
jurisprudence,  in  which  it  has  ever  been  holden  that  an  unrecorded 
deed  shall  defeat  the  title  of  a  bona  fide  purchaser  or  mortgagee, 
having  no  knowledge  of  the  existence  of  any  such  deed,  unless  it 
were  recorded  within  a  reasonable  time."  The  cases  cited  from  the 
decisions  of  the  Supreme  Court  of  Kentucky  are  to  the  effect  also 
that  the  protection  afforded  by  their  registration  laws  against  an 
unrecorded  deed  only  extend  to  purchasers  from  the  grantor  himself, 
and  not  to  purchasers  from  his  heirs  or  devisees.  Ralls  v.  Graham, 
4  T.  B.  Monr.  120;  Hancock  v.  Beverly,  6  B.  Moiir.  531.  That 
court  however  in  a  more  recent  case,  decided  in  1857,  say  that,  if  it 
were  a  new  question,  "  and  had  not  been  heretofore  decided,"  they 
should  be  strongly  inclined  to  give  to  the  Statute  a  liberal  construc- 
tion, and  make  it  operate  as  a  remedy  for  the  whole  evil  which  it 
was  intended  to  guard  against.  They  add,  however,  that  as  the 
previous  decision  had  become  a  settled  rule  of  property,  it  is  better 
that  the  law  should  remain  permanent,  ''  although  settled  originally 
upon  doubtful  principles."     Harlan  v.  Seaton,  18  B.  Monr.  312. 

We  do  not,  under  the  circumstances,  incline  to  yield  to  the  authority 
of  these  cases  in  the  construction  of  a  local  Statute  of  this  common- 
wealth. It  appears  to  us  that  the  plain  meaning  of  our  system  of 
registration  is,  that  a  purchaser  of  land  has  a  right  to  rely  upon 
the  information  furnished  him  by  the  registry  of  deeds,  and  in  the 
absence  of  notice  to  the  contrary  he  is  justified  in  taking  that  in- 
formation as  true,  and  acting  upon  it  accordingly.  It  is  impossible 
to  see  why  the  unrecorded  deed  of  Nancy  A.  Fiske  should  have  any 
greater  weight  or  force  after  her  decease  than  it  had  immediately 
after  it  was  first  delivered.  It  could  not  be  any  more  or  less  bind- 
ing on  her  heir  at  law  than  it  was  upon  herself;  he  was  as  much  the 
apparent  owner  of  the  land  as  she  had  been  during  her  lifetime. 
The  manifest  purpose  of  our  Statute  is,  that  the  apparent  owner 


SECT.    Ill]  MARSHALL    V.   ROBERTS  693 

of  record  shall  be  considered  as  the  true  owner  (so  far  as  subsequent 
purchasers  without  notice  to  the  contrary  are  concerned),  notwith- 
standing any  unrecorded  and  unknown  previous  alienation.  As 
against  the  claim  of  this  plaintiff,  the  unrecorded  deed  of  iSTancy  A. 
Fiske  had  no  binding  force  or  effect,  and  the  objection  of  the  defend- 
ants, that  in  consequence  of  her  having  given  that  deed  nothing 
descended  to  her  son  Benjamin  from  her,  is  one  of  which  they  cannot 
avail  themselves.  As  a  purchaser  without  notice,  the  plaintiff  is  in 
a  position  to  say  that  the  unrecorded  deed  had  no  local  force  or 
effect;  that  she  died  seised;  that  the  property  descended  to  Benjamin, 
her  son  and  sole  heir  at  law.  Upon  that  assumption,  his  deed  would 
take  precedence  over  the  unrecorded  deed  of  his  mother,  in  exactly 
the  same  manner  as  a  deed  from  his  mother  in  her  lifetime  would 
have  done  over  any  unrecorded  or  unknown  previous  deed  from 
herself.  The  ruling  at  the  trial  was  therefore  erroneous,  and  the 
plaintiff's  Exceptions  are  sustained. 


MARSHALL  v.  ROBERTS 
18  Minn.  405.     1872. 

The  plaintiff,  claiming  that  the  defendant  was  the  owner  of  cer- 
tain real  estate,  and  that  after  having  sold  and  conveyed  the  same 
to  him,  and  knowing  his  deed  was  unrecorded,  he  sold  and  conveyed 
the  same  premises  to  other  parties,  who  were  purchasers  in  good 
faith,  and  whose  deeds  were  recorded,  brought  this  action  to  recover 
damages  therefor.  At  the  trial,  after  the  plaintiff  had  introduced  his 
evidence  and  rested,  the  defendant  moved  for  a  dismissal  of  the 
action.  The  court  granted  the  motion  and  judgment  of  dismissal 
was  entered.  The  plaintiff  appeals  to  this  court.  The  facts  upon 
which  the  decision  is  based,  are  fully  stated  in  the  opinion  of  the 
court. 

Berry,  J.  For  the  purpose  of  determining  the  only  question 
necessary  to  be  considered  in  this  case,  we  may  assume  that  the 
following  propositions,  which  plaintiff  claims  to  have  proved,  or  to 
have  offered  to  prove,  are  true  as  matter  of  fact :  — 

1st.  That  on  the  12th  day  of  May,  1S60,  Louis  Roberts  was  the 
owner  of  lot  four,  in  block  four,  of  the  town  of  St.  Paul,  according 
to  the  recorded  plat  thereof. 

2d.  That  on  said  12th  day  of  May  said  Roberts,  together  with  his 
wife,  executed  and  delivered  to  the  plaintiff,  Joseph  M.  Marshall, 
a  quitclaim  deed  of  all  their  right,  title,  interest,  claim,  and  demand, 
in  and  to  said  lot,  which  deed  through  inadvertence  on  plaintiff's  part 
has  never  been  recorded. 

3d.  That  on  the  2d  day  of  August,  1865,  said  Roberts  (well  know- 
ing his  deed  to  Marshall,  and  Marshall's  inadvertent  omission  to 
have  the  same  recorded)  for  a  valuable  consideration,  executed  and 


694  MARSHALL    V.    ROBERTS  [CHAP.   XI 

delivered  (his  wife  joining)  to  Uri  L.  Lamprey  a  quitclaim  deed 
of  all  their  right,  title,  interest,  claim  and  demand  in  and  to  said 
lot,  which  deed  was  duly  recorded  August  3d,  1865,  the  said  Lamprey 
at  the  time  of  said  conveyance  to  him,  and  at  the  time  of  paying  the 
consideration  therefor,  having  no  notice  of  the  aforesaid  conveyance 
to  the  plaintiff. 

4th.  That  on  the  22d  day  of  May,  1867,  said  Lamprey  and  wife, 
for  a  valuable  consideration,,  executed  and  delivered  to  William  J. 
Cutler  a  warranty  deed  of  said  lot,  which  was  duly  recorded  on  the 
29th  day  of  May,  1867,  the  said  Cutler  at  the  time  of  such  conveyance 
to  him,  and  at  the  time  of  paying  the  consideration  therefor,  having 
no  notice  of  said  conveyance  to  the  plaintiff,  and  having  purchased 
in  good  faith. 

Plaintiff's  claim  is,  that  by  reason  of  defendant's  deed  to  Lamprey, 
and  the  recording  thereof,  he  (plaintiff)  has  lost  his  title  to  the  lot 
in  question,  and  has  therefore  suffered  damage  to  the  value  of  said  lot, 
which  damage  he  seeks  to  recover  of  defendant  in  this  action. 

If  the  deed  from  Roberts  to  plaintiff  conveyed  nothing  to  plaintiff, 
the  subsequent  deed  to  Lamprey  can  have  taken  nothing  away  from 
him,  or,  in  other  words,  it  cannot  have  damaged  the  plaintiff. 

If  on  the  other  hand,  as  would  appear  from  the  facts  before  as- 
sumed, the  deed  from  Roberts  to  plaintiff  conveyed  a  good  title  to  the 
lot  in  question,  or  any  right,  title,  interest,  claim,  or  demand  in  or 
to  it,  then,  neither  such  good  title,  nor  any  such  right,  title,  interest, 
claim  or  demand,  could  be  taken  away  or  impaired  by  the  subsequent 
conveyance  to  Lamprey.  For  the  deed  to  Lamprey  is  a  quitclaim 
deed  in  common  form,  the  effect  of  which,  under  our  Statute,  is  to 
pass  such  estate  as  the  grantor  could  lawfully  convey  by  the  ordinary 
deed  of  bargain  and  sale.  In  Martin  v.  Brown,  4  Minn.  291,  it  is 
held  that  the  Legislature  by  the  words  "  lawfully  convey,"  intend  to 
limit  the  estate  conveyed  by  a  quitclaim  deed,  to  such  as  the  grantor 
has  a  legal  right  to  convey,  and  that  as  he  may  not  lawfully  convey 
land  which  he  has  already  conveyed  to  another,  nothing  passes  by 
such  deed  beyond  the  grantor's  actual  interest  at  the  time  of  the 
conveyance.  And  in  Hope  v.  Stone,  10  Minn.  152,  where  there  was 
a  conveyance  (by  warranty  deed)  of  all  the  right,  title,  interest, 
(Src,  &c.,  of  the  grantor  in  and  to  certain  land,  it  was  held  that  nothing 
passed  to  the  grantees  by  the  conveyance  which  the  grantor  had 
previously  conveyed  to  the  other  parties.  (See  also  cases  there 
cited.)  In  Everest  v.  Ferris,  16  Minn.  26,  the  rule  thus  laid  down 
in  Martin  v.  Brown,  is  reiterated;  and  independently  (so  far  as 
appears)  of  any  Statute,  it  is  held  in  May  v.  Le  Claire,  11  Wallace, 
232,  that  a  party  who  has  acquired  his  title  by  a  quitclaim  deed 
cannot  be  regarded  as  a  bona  fide  purchaser  without  notice,  and  that 
such  conveyance  passes  the  title  as  the  grantor  held  it,  and  the  grantee 
takes  only  what  the  grantor  could  lawfully  convey.  The  provisions 
of  our  Statute  in  regard  to  the  effect  of  recording  and  failing  to 


SECT.    Ill]  MARSHALL    V.    ROBERTS  695 

record  deeds,  are  also  iu  entire  harmony  with  the  views  expressed 
in  the  case  cited.  Sec.  54,  ch.  35,  Pub.  Stat.,  which  seems  to  have 
been  in  force  at  the  time  when  Roberts  made  the  deed  to  Lamprey, 
enacts  that  every  conveyance  by  deed,  kc,  shall  bo  recorded,  kc,  and 
that  every  such  conveyance  not  so  recorded  shall  be  void,  as  against 
any  subsequent  purchaser  in  good  faith  and  for  a  valuable  considera- 
tion, of  the  same  real  estate  or  any  portion  thereof,  Avhose  convey- 
ance shall  be  first  duly  recorded.  Substantially  the  same  provisions 
as  those  above  mentioned,  are  also  found  in  sec.  24,  chap.  46,  Rev. 
Stat.,  and  sec.  21,  chap.  40,  Gen.  Stat.,  so  that  our  Statute  in  this 
particular  seems  to  have  remained  unchanged.  These  provisions,  as 
will  appear  upon  a  moment's  reflection,  so  far  from  militating  against 
the  views  expressed  in  the  cases  cited,  come  to  their  aid,  since  it  is 
only  the  purchaser  of  the  same  real  estate,  or  any  portion  thereof, 
who  by  his  priority  of  record  cuts  out  the  title  of  a  prior  purchaser. 
For  when  the  second  purchaser  obtains  by  his  quitclaim  deed  only 
what  his  grantor  had  (his  grantor's  right,  title  and  interest)  at  the 
time  Avhen  such  deed  was  made,  he  is  not  a  purchaser  of  the  same 
real  estate  (or  any  part  thereof)  which  his  grantor  had  previously 
conveyed  away  and  therefore  no  longer  has.  But  besides  this,  the 
grantee  in  a  quitclaim  deed  like  that  from  Roberts  to  Lamprey, 
though  he  may  not  in  fact  have  known  that  his  grantor  had  pre- 
viously conveyed  the  described  premises  to  another,  and  though  he 
may  not  in  fact  have  intended  to  defraud  such  prior  grantee,  is  not 
a  purchaser  in  good  faith  as  against  such  prior  grantee,  for  nothing 
is  attempted  to  be  transferred  to  him,  excejjt  whatever  right,  title, 
<S:c.,  the  grantor  has  at  the  time  when  the  quitclaim  deed  is  executed, 
so  that  as  in  the  case  of  Hope  v.  Stone  the  very  terms  of  the  deed  are 
notice  of  the  existence  of  the  rights  which  have  been  conferred  upon 
such  prior  grantee,  or  any  other  person. 

These  considerations,  as  it  seems  to  us,  dispose  of  this  case  and 
prevent  us  from  reaching  the  questions  mainly  discussed  by  plaintiff's 
counsel. 

The  judgment  entered  below  dismissing  the  action  is  affirmed.^ 

1  The  doctrine  of  Marehall  v.  Roberts  has  been  abrogated  by  statute  in 
Minnesota.    See  Strong  v.  Lynn,  38  Minn.  315. 

The  following  decisions  arc  in  accordance  with  the  principal  case.  Riicker 
V.  Tenn.  Coal  Co.,  176  Ala.  456;  First  National  Bank  v.  Timtnins,  4  Alaska 
242;  Wickham  v.  Ilcnthorn.  91  Iowa  242;  Johnson  v.  WilUamf!,  37  Kan.  179; 
K710X  V.  Doty,  81  Kan.  138;  Messenger  v.  Peter,  129  Mich.  93  (but  see 
Michigan,  Acts  (1915),  No.  199).  .Compare  Hooper  v.  Leavitt,  109  Me.  70. 
Contra.  Hopkins  v.  Hebard,  194  F.  R.  301 ;  The  Henry  Wrape  Co.  v.  Cox, 
122  Ark.  445;  Kelsey  v.  A'orm,  53  Colo.  306;  Schott  v.  Dosh,  49  Neb.  187; 
Mahii'-Lowery  Co.  v.  i?o.s'.s,  189  Pac.  (Okla.)  42;  Shutz  v.  Tidrick.  26  S.  D. 
505  (but  see  Fowler  v.  Will,  19  S.  D.  131 ;  Lu,<ik  v.  Yankton,  40  S.  D.  498, 
503)  ;  MeDougall  v.  Murray,  57  Wash.  76.  And  see  Rilry  v.  Robinson,  128 
A.  D.  (N.  Y.)  178.  202  N.  Y.  531;  Tucker  v.  Leonard,  183  Pac.  (Okla.)  907; 
Southern  Ry.  v.  Carroll,  86  S.  C.  56. 

"  The  doctrine  expressed  in  many  cases  that  the  grantee  in  a  quitclaim  deed 


696  MARSHALL    V.   ROBERTS  [CHAP.   XI 

cannot  be  treated  as  a  buna  fide  purchaser  does  not  seem  to  rest  upon  any 
sound  principle.  It  is  asserted  upon  the  assumption  that  the  form  of  the 
instrument,  that  the  grantor  merely  releases  to  the  grantee  his  claim,  what- 
ever it  may  be,  without  any  wan-anty  of  its  value,  or  only  passes  whatever 
interest  he  may  have  at  the  time,  indicates  that  there  may  be  other  and 
outstanding  claims  or  interests  which  may  possibly  affect  the  title  of  the 
property,  and,  therefore,  it  is  said  that  the  grantee,  in  accepting  a  convey- 
ance of  that  kind,  cannot  be  a  bona  fide  purchaser  and  entitled  to  protection 
as  such;  and  that  he  is  in  fact  thus  notified  by  his  grantor  that  there  may 
be  some  defect  in  his  title  and  he  must  take  it  at  his  risk.  This  assump- 
tion we  do  not  think  justified  by  the  language  of  such  deeds  or  the  general 
opinion  of  conveyancers.  There  may  be  many  reasons  why  the  holder  of 
property  may  refuse  to  accompany  his  conveyance  of  it  with  an  express 
warranty  of  the  soundness  of  its  title  or  its  freedom  from  the  claims  of 
others,  or  to  execute  a  conveyance  in  such  form  as  to  imply  a  warranty 
of  any  kind  even  when  the  title  is  known  to  be  perfect.  He  may  hold  the 
property  only  as  a  trustee  or  in  a  corporate  or  official  character,  and  be 
unwilling  for  that  reason  to  assume  any  personal  responsibility  as  to  its 
title  or  freedom  from  liens,  or  he  may  be  unwilling  to  do  so  from  notions 
peculiar  to  himself;  and  the  purchaser  may  be  imable  to  secure  a  conveyance 
of  the  property  desired  in  any  other  form  than  one  of  quitclaim  or  of  a 
simple  transfer  of  the  grantor's  interest.  It  would  be  unreasonable  to  hold 
that,  for  his  inability  to  secure  any  other  form  of  conveyance,  he  should 
be  denied  the  position  and  character  of  a  bona  fide  purchaser,' however  free, 
in  fact,  his  conduct  in  the  purchase  may  have  been  from  any  imputation 
of  the  want  of  good  faith.  In  many  parts  of  the  country  a  quitclaim  or  a 
simple  conveyance  of  the  grantor's  interest  is  the  common  form  in  which 
the  transfer  of  real  estate  is  made.  A  deed  in  that  form  is,  in  such  cases, 
as  effectual  to  divest  and  transfer  a  complete  title  as  any  other  form  of 
conveyance.  There  is  in  this  country  no  difference  in  their  efficacy  and 
operative  force  between  conveyances  in  the  form  of  release  and  quitclaim 
and  those  in  the  form  of  grant,  bargain  and  sale.  If  the  grantor  in  either 
case  at  the  time  of  the  execution  of  his  deed  possesses  any  claim  to  or 
interest  in  the  property,  it  passes  to  the  grantee.  In  the  one  case,  that  of 
bargain  and  sale,  he  impliedly  asserts  the  possession  of  a  claim  to  or  inter- 
est in  the  property,  for  it  is  the  property  itself  which  he  sells  and  under- 
takes to  convey.  In  the  other  case,  that  of  quitclaim,  the  grantor  affirms 
nothing  as  to  the  ownership,  and  undertakes  only  a  release  of  any  claim  to 
or  interest  in  the  premises  which  he  may  possess  without  asserting  the 
ownership  of  either.  If  in  either  case  the  grantee  takes  the  deed  with 
notice  of  an  outstanding  conveyance  of  the  preimises  from  the  grantor, 
or  of  the  execution  by  him  of  obligations  to  make  such  conveyance  of  the 
premises,  or  to  create  a  lien  thereon,  he  takes  the  property  subject  to  the 
operation  of  such  outstanding  conveyance  and  obligation,  and  cannot  claim 
protection  against  them  as  a  bona  fide  purchaser.  But  in  either  case  if  the 
grantee  takes  the  deed  without  notice  of  such  outstanding  conveyance  or 
obligation  respecting  the  property,  or  notice  of  facts  which,  if  followed  up, 
would  lead  to  a  knowledge  of  such  outstanding  conveyance  or  equity,  he  is 
entitled  to  protection  as  a  bona  fide  purchaser,  upon  showing  that  the  con- 
sideration stipulated  has  been  paid  and  that  such  consideration  was  a  fair 
price  for  the  claim  or  interest  designated.  The  mere  fact  that  in  either  case 
the  conveyance  is  unaccompanied  by  any  warranty  of  title,  and  against 
incumbrances  or  liens,  does  not  raise  a  presumption  of  the  want  of  bona 
fides  on  the  part  of  the  purchaser  in  the  transaction.  Covenants  of  war- 
ranty do  not  constitute  any  operative  part  of  the  instrument  in  transferring 
the  title.  That  passes  independently  of  them.  Thej'  are  separate  con- 
tracts, intended  only  as  guaranties  against  future  contingencies.  The  character 
of  bona  fide  purchaser  must  depend  upon  attending  circumstances  or  proof 


SECT.    Ill]  MARSHALL    V.    ROBERTS  697 

as  to  the  transaction,  and  does  not  arise,  as  often,  though,  we  think,  inad- 
vertently, said,  either  from  the  form  of  the  conveyance  or  the  presence  or 
the  absence  of  any  accompanying  warranty.  Whether  the  grantee  is  to  be 
treated  as  taking  a  mere  speculative  chance  in  the  property,  or  a  clear  title, 
must  depend  upon  the  character  of  the  title  of  the  grantor  when  he  made 
the  conveyance:  and  the  opportunities  afforded  the  grantee  of  ascertaining 
this  fact  and  the  diligence  with  which  he  1ms  prosecuted  them,  will,  besides 
the  payment  of  a  reasonable  consideration,  determine  the  bona  fide  nature 
of  the  transaction  on  his  part."  Per  Field,  J.,  in  Moelle  v.  Sherwood,  148 
U.  S.  21,  28. 

''As  against  these  evidences  and  conclusions  of  good  faith  but  a  single 
proposition  is  raised,  one  upon  which  the  dissenting  judge  in  the  Circuit 
Court  of  Appeals  rested  his  opinion,  and  that  is  the  proposition  that  the 
convej'ances  from  the  Road  Company  were  only  quitclaim  deeds,  and  that 
a  purchaser,  holding  under  such  a  deed  cannot  be  a  bona  fide  purchaser, 
and  in  support  of  this  proposition  reference  is  made  to  the  following  cases 
in  this  court:  Oliver  v.  Piatt,  3  How.  333,  410;  Van  Rensselaer  v.  Kearney, 
11  How.  297;  May  v.  Le  Claire,  11  Wall.  217,  232;  Villa  v.  Rodriguez,  12 
Wall.  323,  339;  Dickerson  v.  Colgrove,  100  U.  S.  578;  Baker  v.  Huynphrey, 
101  U.  S.  494;  Hanrick  v.  Patrick,  119  U.  S.  156.  The  argument,  briefly 
stated,  is  that  he  who  will  give  only  a  quitclaim  deed  in  effect  notifies  his 
vendee  that  there  is  some  defect  in  his  title,  and  the  latter,  taking  with  such 
notice,  takes  at  his  peril.  It  must  be  confessed  that  there  are  expressions 
in  the  opinions  in  the  cases  referred  to  which  go  to  the  full  length  of  this 
proposition.  Thus,  in  Baker  v.  Humphrey,  101  U.  S.  494,  499,  Mr.  Justice 
Swayne,  in  delivering  the  opinion  of  the  court,  uses  this  langauge  '  Neither 
of  them  was  in  any  sense  a  bona  fide  purchaser.  No  one  taking  a  quitclaim 
deed  can  stand  in  that  relation.'  Yet  it  may  be  remarked  that  in  none 
of  these  cases  was  it  necessary  to  go  to  the  full  extent  of  denying  absolutely 
that  a  party  taking  a  quitclaim  deed  could  be  a  bona  fide  purchaser;  and 
in  the  later  case  of  McDonald  v.  Belding,  145  U.  S.  492,  it  was  held,  in  a 
case  coming  from  Arkansas,  and  in  harmony  with  the  rulings  of  the  Supreme 
Court  of  that  State,  that  while  ordinarily  a  person  holding  under  a  quit- 
claim deed  may  be  presumed  to  have  had  knowledge  of  imperfections  in 
his  vendor's  title),  yet  that  the  rule  was  not  universal,  and  that  one  might 
become  a  bona  fide  purchaser  for  value  although  holding  under  a  deed  of 
that  kind ;  and  in  that  case  the  grantee  so  holding  was  protected  as  a 
bona  fule  purchaser:  while  in  the  case  of  Moelle  v.  Sherwood,  just  decided, 
ante,  21,  the  general  question  was  examined,  and  it  was  held  that  the  receipt- 
of  a  quitclaim  deed  does  not  of  itself  prevent  a  party  from  becoming  a 
bona  fide  holder,  and  the  expressions  to  the  contrary,  in  previous  opinions, 
were  distinctly  disaffirmed."  Per  Brewer,  J.,  in  U.  S.  v.  California  etc.  Co., 
148  U.  S.  31,  45.    See  Devlin,  Deeds,  3d  ed.,  §§  671-673. 

"  So  far  as  wo  are  aware  the  application  of  the  rule  in  this  State  has  been 
limited  to  cases  wherein  the  grantee  in  the  quitclaim  deed  was  the  person 
claiming  to  be  the  purchaser  in  good  faith.  In  the  case  at  bar  defendant  Hod- 
nett  holds  under  a  general  warranty  deed  and  the  two  deeds  in  the  chain  of 
title  immediately  preceding  defendant's  deed  were  also  waiTanty  deeds.  The 
special  warranty  deed  was  therefore  remote  from  the  transaction  by  which 
Hodnett  acquired  title.  Should  the  general  rule  ap'pHcable  to  the  grantee  in 
a  quitclaim  deed  be  applied  to  a  grantee  in  a  .subsequent  warranty  deed? 

"  The  great  weight  of  authority  upon  what  appears  to  us  to  be  the  sounder 
logic  is  to  the  effect  that  a  .subsequent  grantee  in  a  general  warranty  deed 
is  not  prevented  from  occupying  the  position  of  a  bona-fido  purchaser,  with- 
out notice,  merely  because  some  jirior  conveyance  in  his  chain  of  title  is  a 
quitclaim  or  special  warranty  deed."  Per  Wii.mams,  J.,  in  Marston  v.  Catter- 
iin,  270  Mo.  1.  14.  And  see  Rich  v.  Downs,  81  Kan.  43;  Bradford  v.  Davis, 
219  S.  W.  (Mo.)  617. 


698  DOW   V.   WHITNEY  [CHAP.   XI 

DOW  V.  WHITIvTEY 

147  Mass.  1.     1888. 

Bill  in  equity,  filed  August  7,  1887,  for  the  specific  performance 
by  the  defendant  of  an  agreement  to  purchase  land.  The  facts  of  the 
case  are  as  follows. 

On  November  2,  1857,  Stephen  Dow  became  the  owner  of  a  tract 
of  land  in  Brookline,  including  the  premises  in  question,  by  deeds, 
which  were  duly  recorded,  from  Samuel  A.  Robinson  and  others, 
and  from  Otis  Withington,  and  subsequently  conveyed  portions  of  it, 
other  than  such  premises,  to  different  persons  by  deeds  also  recorded. 

On  November  1,  1878,  Stephen  Dow,  by  a  deed,  w^hicli  contained 
the  usual  covenants  of  warranty,  conveyed  to  "Alfred  A.  Dow,  his 
heirs  and  assigns,  all  my  interest  in  all  that  lot  of  land,  with  the 
buildings  thereon,  situated  on  Corey  Hill,  in  Brookline,  in  the  county 
of  Norfolk  and  Commonwealth  aforesaid,  bounded  on  the  north  by 
Summit  Avenue;  east  by  land  now  or  late  of  William  Woods;  north 
again  by  said  Woods;  east  again  by  land  now  or  late  of  Thomas 
Griggs ;  south  by  land  of  Henry  M.  Whitney,  land  of  Mrs.  John  M. 
Clark,  and  Beacon  Street;  and  west  by  land  now  or  late  of  E.  D. 
Jordan  et  al.,  formerly  of  James  Bartlett;  being  the  same  premises 
conveyed  to  me  by  S.  A.  Robinson  et  al.,  also  by  Otis  Withington, 
by  deed  dated  November  2,  1857,  and  recorded  with  Norfolk  Deeds, 
book  261,  page  279,  .  .  .  hereby  conveying  to  said  grantee  all  the 
land  conveyed  to  me  by  the  deed  aforesaid,  except  such  portions 
thereof  as  I  have  heretofore  sold." 

On  October  1,  1879,  Alfred  A.  Dow,  by  a  deed  of  like  tenor  as  the 
above,  conveyed  "  all  my  interest  "  in  the  same  land  to  the  plaintiff, 
Avho,  on  February  23,  1887,  entered  into  an  agreement  in  writing 
with  the  defendant  for  its  sale  and  purchase,  she  to  give  a  "  good  and 
clear  title  to  the  same  free  from  all  incumbrances." 

The  defendant  contended  that  the  deeds  from  Stephen  Dow  to 
Alfred  A.  Dow,  and  from  the  latter  to  the  plaintiff,  conveyed  only 
such  interest  as  each  grantor  actually  had  at  the  time  of  the  delivery 
thereof,  and  was  subject  to  possible  unrecorded  deeds  theretofore 
made  by  each,  but  of  which  there  was  no  evidence,  and  that  the 
plaintiff  could  not  make  title  in  accordance  with  the  agreement. 

Hearing  before  C.  Allen,  J.,  who  ordered  a  decree  for  the  plaintiff; 
and  the  defendant  appealed  to  the  full  court. 

Morton,  C.  J.  It  is  clear  that  the  clause  following  the  specific 
description  in  Stephen  Dow's  deed,  beginning,  "  being  the  same 
premises,"  etc.,  was  not  intended  to  limit  the  prior  granting  clause 
of  the  deed,  or  to  alter  the  description,  but  was  inserted  for  the  pur- 
pose of  showing  the  grantor's  chain  of  title.  Lovejoy  v.  LoveH,  124 
Mass.  270. 


SECT.    Ill]  DOW    V.    WHITNEY  699 

The  principal  question  in  this  case  is  whether  the  deed  of  Stephen 
Dow  conveyed  to  the  grantee  a  title  which  is  superior  to  that  of  any 
grantee  by  a  prior  unrecorded  deed  of  the  grantor.  This  question 
was  fully  considered  and  discussed  in  M^oodivard  v.  Sartwell,  129 
Mass.  210.  In  that  case,  it  was  held  that  a  deed  by  an  officer,  upon 
a  sale  on  execution  of  "  all  the  right,  title,  and  interest  "  of  the  judg- 
ment debtor  in  land  specifically  described  in  the  deed,  took  prece- 
dence of  a  i^rior  unrecorded  deed  of  the  judgment  debtor,  and  con- 
veyed to  the  purchaser  a  good  title.  The  court  put  the  decision  upon 
the  ground,  that  an  attaching  creditor  has  the  same  standing  as  a 
bona  fide  purchaser,  and  that  the  deed  of  the  officer  "  is  equivalent 
to  a  conveyance  made  by  the  debtor  at  the  time  the  attachment 
was  made;  and  in  the  case  at  bar,  as  the  record  title  then  stood  in 
the  name  of  the  debtor,  as  to  bona  fide  purchasers,  he  was  the  owner 
of  the  land." 

We  are  satisfied  that  these  views  are  correct.  We  can  see  no  sound 
distinction  between  a  deed  made  by  an  officer  upon  a  sale  on  execu- 
tion, and  a  deed  made  by  the  debtor  himself.  In  either  case,  the 
deed  conveys  all  the  title  which  the  debtor  had,  and  no  more;  but  a 
prior  unrecorded  deed  has  no  effect  except  as  between  the  parties  to 
it,  and  others  having  notice  of  it,  and  as  to  creditors  and  purchasers 
leaves  the  title  in  the  grantor.    EarJe  v.  Fishe,  103  Mass.  491. 

A  deed  of  "  all  the  right,  title,  and  interest,"  or  of  "  all  the  inter- 
est," of  the  grantoi^  in  a  lot  of  land,  conveys  the  same  title  as  a 
deed  of  the  land.  It  is  the  policy  of  our  laws  that  a  purchaser  of 
land,  by  examining  the  registry  of  deeds,  may  ascertain  the  title  of 
his  grantor.  If  there  is  no  recorded  deed,  he  has  the  right  to  assume 
that  the  record  title  is  the  true  title.  The  law  has  established  the 
rule,  for  the  protection  of  creditors  and  purchasers,  that  an  unre- 
corded deed,  if  unknown  to  them,  is  as  to  them  a  mere  nullity.  The 
reasons  for  the  rule  apply  with  equal  force  in  the  case  of  a  deed 
of  the  grantee's  right,  title,  and  interest,  as  in  that  of  a  deed  of  the 
land.  We  are  of  opinion,  therefore,  that  the  deed  of  Stephen  Dow 
conveyed  to  his  grantee  a  title  which  is  good  against  any  prior 
deed,  if  unrecorded.  To  hold  otherwise  would  defeat  the  purpose  of 
the  registration  laws,  and  create  confusion  in  the  titles  to  land. 
•  It  is  to  be  noticed  that  the  deed  in  this  case  contains  a  specific 
description  of  the  land  intended  to  be  conveyed,  and  contains  the 
usual  covenants  of  warranty.  The  case  is  thus  distinguished  from 
a  class  of  cases  relied  upon  by  the  defendant,  in  which  it  has  been 
held  that,  where  a  deed  contains  no  particular  descri])tion,  but  only 
a  general  description,  like  "  all  my  land,"  or  "  all  the  land  T  have  in 
Boston,"  or  other  similar  general  description,  it  does  not  take  preced- 
ence of  prior  unrecorded  deeds  of  the  grantor.  See  Adams  v. 
Cuddy,  13  Pick.  460;  Jamaica  Pond  Aqueduct  v.  Chandler,  9  Allen, 
159;  Fitzgerald  v.  Lil)bj/,  142  Mass.  235.  In  each  of  these  cases 
the  question  was  not  as  to  the  effect  of  a  prior  unrecorded  deed  of 


700  BLADES    V.    BLADES  [CHAP.    XI 

the  same  land,  but  it  was  whether  the  land  previously  sold  was  in- 
cluded within  the  description  of  the  later  deed.  In  other  words  it 
was  a  question  of  the  construction  of  the  deed  relied  upon.  JSTo  such 
question  can  arise  in  the  case  at  bar,  as  the  description  of  the  land 
intended  to  be  conveyed  is  specific  and  exact.  The  same  considera- 
tions apply  to  the  deed  from  Alfred  A.  Dow  to  the  plaintiff. 

The  defendant  contends  that  specific  performance  of  his  contract 
ought  not  to  be  decreed,  because,  if  compelled  to  take  a  conveyance, 
he  may  afterwards  be  exposed  to  litigation  to  defend  his  title.  It 
is  not  known  that  there  is  any  unrecorded  deed  made  by  Stephen 
Dow  or  Alfred  A.  Dow.  The  only  alleged  defect  is,  that  there  is 
a  possibility  that  there  is  such  a  deed,  and  that  the  grantee  in  it 
may  hereafter  appear  and  contest  the  defendant's  title. 

The  defendant  ought  not  to  be  required  to  accept  a  title  that  is 
doubtful.  But  in  this  case  there  is  no  reasonable  doubt  that  the 
plaintiff's  deed  conveys  a  good  title.  Its  validity  depends  upon  a 
pure  question  of  law,  and  no  question  of  fact  is  involved.  The  mere 
possibility  that  a  claimant  may  hereafter  appear  and  ask  the  court 
to  overturn  a  well  settled  rule  of  law  is  not  such  a  defect  or  doubt 
in  the  title  as  ought  to  lead  the  court  in  its  discretion  to  deny  to  the 
plaintiff  the  right  in  equity  to  a  specific  performance  of  the  con- 
tract. Hayes  v.  Harmony  Grove  Cemetery,  108  Mass.  400;  Chesman 
Y.  CummingSj,  142  Mass.  65. 

As  the  parties  agree  to  the  form  of  the  decree  entered  by  the 
justice  who  heard  the  case,  it  should  therefore  be  affirmed. 

Decree  affirmed.^ 


BLADES  V.  BLADES 

1  Eq.  Cas.  Ab.  358.  pi.  12.     1727. 

In  a  case  between  two  purchasers  of  lands  in  Yorkshire,  where  the 
second  purchaser  having  notice  of  the  first  purchase,  but  that  it  was 
not  registered,  went  on  and  purchased  the  same  estate,  and  got  his 
purchase  registered;  yet  it  was  decreed,  that  having  notice  of  the 
first  purchase,  though  it  was  not  registered,  bound  him,  and  that 
his  getting  his  own  purchase  first  registered  was  a  fraud,  the  de*- 
sign  of  those  Acts  being  only  to  give  parties  notice,  who  might  other- 
wise, without  such  registry,  be  in  danger  of  being  imposed  on  by  a 
prior  purchase  or  mortgage,  which  they  are  in  no  danger  of  when 
they  have  notice  thereof  in  any  manner,  though  not  by  the  registry. 
By  Lord  Chancellor  King  decreed.^ 

1  See  Gallup  v.  Huling,  241  F.  R.  858;  Adams  v.  Cuddy,  13  Pick.  (Mass.) 
460;  Fitzgerald  v.,Libbij,  142  Mass.  235;  Eaton  v.  Trowbridge,  38  Mich.  454; 
Gamer  v.  Boyle,  97  Tex.  460;  Cook  v.  Smith,  107  Tex.  119;  McNamara 
Syndicate  v.  Boyd,  112  Va.  145. 

2  See  Le  Neve  v.  Le  Neve,  Amb.  436.  But  compare  at  law  Doe  d. 
Robinson  v.  Allsop,  5  B.  &  Aid.  142. 


SECT.    Ill]         MAYHAM    V.    COOMBS,   PARKER   AND   OTHERS        701 

STKOUD,  Assignee  v.  LOCKxVRT  et  Al. 
4  Dall.  (Pa.)   153.     1797. 

Scire  facias  on  a  mortgage.  The  mortgage  had  not  been  re- 
corded, conformably  to  the  Act  of  Assembly;  and  Lockart  had  pur- 
chased the  premises.  But,  on  the  trial,  the  plaintiff  proved,  that 
Lockart  knew  of  the  existence  of  the  mortgage  at  the  time  of  his 
purchase,  and  said  he  would  have  to  pay  it,  although  it  was  not 
then  recorded. 

By  the  Court.  The  case  is  too  plain  for  controversy.  The 
plaintiff  must  have  a  verdict;  and  all  the  trouble  of  the  jury  will 
be  to  calculate  the  interest.  Verdict  for  the  plaintiff} 


MAYHAM  V.  COOMBS,  PARKER  and  Others 
14  Ohio  428.     1846. 

This  is  a  bill  in  chancery  reserved  in  the  County  of  Clermont. 

This  bill  is  filed  by  the  complainant  to  foreclose  a  mortgage,  and 
to  pTocure  the  sale  of  mortgaged  premises.  Benjamin  Coombs  is 
the  mortgagor,  Anna  Parker,  a  mortgagee,  and  Mathias  Kagler,  a 
judgment  creditor.  There  are  other  defendants,  but,  for  present 
purposes,  it  is  unnecessary  to  specify  the  relations  in  which  they 
stand  to  the  case. 

The  facts,  so  far  as  respects  the  several  mortgages  and  the  judg- 
ment, are  as  follows:  Anna  Parker,  on  the  12th  day  of  March,  1838, 
contracted  to  sell  to  Benjamin  Coombs  one  hundred  and  one  acres  of 
land,  and  which  is  the  only  land  about  which  there  is  any  contro- 
versy, and  gave  to  him  a  title  bond.  At  the  same  time  she  took  his 
note  for  the  purchase  money,  signed  by  James  Coombs  as  his  secur- 
ity. On  the  18th  day  of  July,  1840,  she  conveyed  the  same  land, 
by  deed  duly  executed,  and  took  back  a  mortgage,  to  secure  the  pay- 
ment of  $1,616,  the  balance  due  of  the  purchase  money.  This  mort- 
gage was  recorded  on  the  11th  day  of  November,  1840. 

On  the  30th  day  of  October,  1840,  Benjamin  Coombs  executed 
to  the  complainants  a  mortgage  of  the  same  premises  to  secure  the 
payment  of  twelve  hundred  and  sixty-nine  dollars,  which  mortgage 
was  entered  for  record  on  the  day  of  its  date. 

This  latter  mortgage  also  covered  fifty  acres  of  land  in  addition  to 
the  one  hundred  and  one  acres,  which,  in  1837,  had  been  mort- 
gaged by  Coombs  to  one  Shadrack  Lane,  to  secure  the  payment  of 
two  hundred  and  seventy  dollars,  which  mortgage,  on  the  17th  day 
of  May,  1841,  was  assigned  by  Lane  to  the  complainant.  As  to  this 
fifty  acres,  there  is  not,  at  present,  any  controversy.  On  the  30th 
1  See  Clark  v.  McNeal,  114  N.  Y.  287;  Britton's  Appeal,  45  Pa.  172. 


702        MAYHAM    V.    COOMBS,    PARKER   AND   OTHERS        [CHAP.   XI 

July,  1840,  tlic  defendant,  Matliias  Kagler,  recovered  a  judgment  in 
the  Court  of  Common  Pleas  of  Clermont  County,  against  Benjamin 
Coombs,  for  $506.25  and  costs  of  suit. 

Anna  Parker,  in  her  answer  to  the  bill,  charges  that  the  com- 
plainant, at  the  time  he  received  his  mortgage,  had  full  notice  of  the 
existence  of  her  mortgage,  and  that,  with  a  view  to  defraud  her,  he 
procured  his  to  be  first  received ;  and  she  calls  upon  him,  by  inter- 
rogatories, to  answer  this  cha^e. 

In  answer,  he  denies  notice  peremptorily.  Much  evidence,  how- 
ever, is  on  file  to  prove  notice,  but  the  view  of  the  case  taken  by  the 
court,  renders  it  unnecessary  to  abstract  this  evidence. 

The  defendant,  Parker,  further  alleges,  in  her  answer,  that  the 
consideration  of  the  note  secured  by  the  complainant's  mortgage,  is 
made  up,  in  a  great  measure,  of  exorbitant  interest,  and  such  exorbi- 
tant interest  compounded,  from  time  to  time;  and  she  calls  upon  him 
by  interrogatories  to  answer  this  allegation,  and  to  set  forth  the 
original  consideration,  which  was  the  foundation  of  the  note,  and 
the  manner  in  which  it  has  been  increased  to  its  present  amount. 

These  interrogatories  the  complainant  refuses  to  answer,  for  the 
reason,  as  he  alleges,  that  he  is  informed  by  counsel  that  he  is  not 
bound  to  make  answer.     This  answer  is  excepted  to. 

Hitchcock,  J.  The  facts  in  this  case,  show  that  the  defendant, 
Anna  Parker,  has  the  oldest  mortgage  upon  the  premises  in  contro- 
versy, that  mortgage  bearing  date  the  18th  of  July,  1840,  but  it  was 
not  recorded  until  the  11th  day  of  November  following.  Before 
this  time,  to  wit,  on  the  30th  day  of  October  of  the  same  year,  the 
complainant  had  procured  a  mortgage  of  the  same  j^remises,  which 
was  entered  for  record  on  the  day  of  its  date. 

Now,  there  can  be  no  doubt  that,  under  these  circumstances,  at 
law,  the  mortgage  of  the  complainant  is  the  preferable  lien  upon  this 
land.  The  7th  section  of  the  Act  expressly  declares  that  mortgages 
"  shall  tahe  effect  from  the  time  when  they  are  recorded;  and  if  two 
mortgages  are  presented  for  record  on  the  same  day,  they  shall 
take  effect  from  the  order  of  presentation  for  record;  the  first  pre- 
sented, shall  be  the  first  recorded."  —  And  if  they  take  effect  from 
such  time,  they  surely  could  have  had  no  effect  before.  It  is  claimed, 
however,  that  before  recording  a  mortgage,  although,  in  form,  a 
legal  mortgage,  it  "  taJces  effect "  as  an  equitable  mortgage,  and 
that  a  subsequent  mortgage,  with  notice  of  this  previous  mortgage, 
will  be  postponed  in  equity.  This  question  was  before  the  court  at 
the  last  term,  in  the  case  of  Staiisel  v.  Roberts  and  others  (13  Ohio 
Rep.  148),  and  it  was  decided  that  the  lien  of  a  second  mortgage, 
first  recorded,  is  preferred;  that  notice  of  a  prior  unrecorded  mort- 
gage will  not,  under  the  Ohio  Statute,  postpone  the  second  mortgage, 
and  that  it  does  not  make  any  difference  that  the  first  mortgage  was 
given  to  secure  money  borrowed  to  pay  for  the  land. 

I  am  aware  that  this  construction  of  the  Statute  is  not  entirely 


SECT.    Ill]         MAYHAM    V.    COOMBS,    P.\RKER   AXD   OTHERS        703 

satisfactory  to  the  profession,  as  the  hiw  thus  construed  interferes 
with  previous  received  opinions  of  equity  principles,  as  applicable 
to  the  subject.  But  it  is  not  perceived  how  a  different  construction 
would  have  been  put  upon  the  Statute,  by  any  rule  of  construction 
known  in  law.  Mortgages  "  shall  take  effect  from  the  time  they 
are  recorded,"  or,  according  to  a  subsequent  Statute,  from  the  time 
when  entered  or  delivered  for  record.  There  is  no  ambiguity,  no 
uncertainty,  in  the  phraseology.  It  is  plain  and  explicit.  Xot  that 
it  shall  take  effect  at  laAV,  but  that  it  shall  take  effect  from  that  time. 
It  is  the  delivery  of  the  instrument  to  the  proper  officer,  or  at  the 
proper  office,  for  registry,  that  gives  it  vitality.  There  is  no  more 
impropriety  in  this  legislation  than  there  is  in  saying  that  a  deed 
for  the  conveyance  of  land,  although  otherwise  executed  according 
to  the  forms  of  the  law,  shall  not  operate  even  as  between  the  parties 
as  a  conveyance,  until  acknowledged  before  competent  authority; 
yet  such  is  our  law ;  and  it  is  hold  that  such  deed  can,  until  acknowl- 
edged, be  treated  in  no  other  manner  than  as  contracts  to  convey. 

The  opinion  that  it  was  the  intention  of  the  Legislature  that  a 
mortgage  should  be  recorded  in  order  to  give  it  vitality,  is,  as  it 
seems  to  the  court,  perfectly  apparent,  from  an  examination  of  the 
different  laws  providing  for  the  execution  and  acknowledgment  of 
deeds.  The. fourth  section  of  the  Act  of  January  30th,  1818  (Chase 
Stat.  1041),  "  to  provide  for  the  proof  and  acknowledgment  of  deeds 
and  other  instruments  of  Avriting,"  provides,  "that  all  deeds,  mort- 
gages, and  other  instruments  of  writing,  executed  agreeably  to  the 
first  and  second  sections  of  this  Act,  shall  be  recorded  within  six 
months  from  the  date  of  the  same,  within  the  county  wherein  such 
lands,  tenements,  and  hereditaments  are  situate;  and  all  deeds, 
mortgages,  and  other  instruments  of  writing,  executed  agreeably  to 
the  third  section  of  this  Act,  shall  be  recorded  within  six  months 
from  the  date  of  the  same,  within  the  county  wherein  such  lands, 
tenements,  and  hereditaments  shall  lie;  and  all  such  deeds,  mort- 
gages, and  other  instruments  of  writing,  executed,  acknowledged,  or 
proved,  and  recorded  as  aforesaid,  shall  be  good  and  valid  in  laAv; 
and  if  any  deed,  mortgage,  or  other  instrument  of  Avriting,  as  afore- 
said, shall  not  be  recorded  within  the  time  limited,  as  aforesaid, 
such  deed,  mortgage,  or  other  instrument  of  writing,  shall  be  con- 
sidered fraudulent  against  any  subsequent  bona  fide  purchaser  or 
purchasers,  without  knowledge  of  the  existence  of  such  conveyance; 
provided,  that  such  conveyance  may  be  recorded  after  the  expiration 
of  the  time  herein  required,  and  sliall,  from  the  date  of  the  record, 
be  notice  to  any  subsequent  purchaser  or  purchasers." 

The  first  and  second  sections  of  this  Act  relate  to  deeds  executed 
within,  the  third,  to  deeds  executed  without,  the  State.  Previous 
to  this  Act,  one  year  was  allowed  for  recording  deeds  of  the  latter 
description. 

By  this  section  it  will  be  seen  that  uiircTorded  deeds,  mortgages, 


704        MAYHAM    V.    COOMBS,   PARKER   AND   OTHERS       [CHAP.   XI 

and  otliei'  instruments,  were  good  as  against  subsequent  grantees 
with  notice. 

This  Act  was  repealed  by  an  Act  of  the  same  title,  passed  Febru- 
ary 24th,  1820.  The  fourth  section  of  this  Act,  however,  is  sub- 
stantially, if  not  identically,  the  same  with  the  7th  section  of  the 
Act  of  1818  (Ch.  Stat.  1149)  ;  and  it  will  be  observed  that,  as  to  re- 
cording, and  the  effect  thereof,  mortgages  are  placed  precisely  on  the 
same  footing  with  other  deeds  of  conveyance. 

The  last-named  Act  was  repealed  by  the  Act  of  1831,  the  law  now 
in  force.  By  this  latter  law,  a  difference  is  made  between  mortgages 
ajid  other  deeds  of  conveyance.  The  7th  section  provides,  "  that 
all  mortgages,  executed  agreeably  to  the  provisions  of  this  Act,  shall 
be  recorded  in  the  office  of  the  recorder  in  the  county  in  which  such 
mortgaged  premises  are  situated,  and  shall  take  effect  from  the 
time  when  the  same  are  recorded;  and  if  two  or  more  mortgages 
are  presented  for  record  on  the  same  day,  the  first  presented  shall  be 
first  recorded,  and  the  first  recorded  shall  have  preference." 

Then  follows,  in  section  seven,  "  that  all  other  deeds  and  instru- 
ments of  writing,  for  the  conveyance,  or  ervciumhrance  of  any  lands, 
tenements,  or  hereditaments,  executed  agreeably  to  the  foregoing 
provisions,  shall  be  so  recorded,  Avithin  six  months  from  the  date 
thereof;  and  if  such  deed  or  other  instrument  of  writing,  shall  not 
be  so  recorded  within  the  time  herein  prescribed,  the  same  shall  be 
deemed  fraudulent,  so  far  as  relates  to  any  subsequent  hoyia  fide  pur- 
chaser, having,  at  the  time  of  making  siich  purchase,  no  knowledge 
of  the  existence  of  such  former  deed  or  other  instrument  of  writing, 
and  may  be  recorded  after  the  expiration  of  the  time  herein  pre- 
scribed; and  from  the  date  of  such  record,  shall  be  notice  to  any 
subsequent  purchaser." 

It  wdll  be  seen  that,  by  this  last  legislation,  mortgages  and  other 
instruments  of  writing,  which  before  had  been  provided  for  in  one 
section,  are  separated.  Deeds  of  conveyance,  other  than  mortgages, 
may  be  recorded  within  six  months;  but  the  principle  is  retained, 
that  although  not  recorded,  yet  a  subsequent  purchaser,  with  notice, 
cannot  defeat  the  title  of  the  grantee.  The  same  principle  had  pre- 
vailed with  respect  to  mortgages  until  this  time.  But,  by  this  law, 
no  time  is  specified  within  which  they  shall  be  I'ecoi'ded;  that  is 
at  the  election  of  the  mortgagee.  It  is  prescribed,  however,  that  they 
shall  take  effect  from  the  time  of  recording.  What  means  all  this? 
Was  it  done  without  design,  through  mere  carelessness,  or  want  of 
attention?  It  is  evident  that  a  change  in  the  law  was  intended.  It 
was  thought  that  there  was  some  mischief  in  the  previous  law,  and 
the  object  was  to  supply  a  remedy;  and  that  mischief  was,  as  we 
must  suppose,  from  the  course  of  legislation,  that  a  man  might  take 
a  mortgage  of  his  neighbor's  property,  and  keep  it  concealed  for 
six  months,  thereby  enabling  that  neighbor  to  contract  further  debts, 
which  he  would  be  unable  to  pay,  and  thereby  defraud  the  commun- 


SECT.    Ill]         MAYHAM    V.    COOMBS,    PARKER   AND   OTHERS        705 

ity  around  him.  To  remedy  evils  of  this  character,  the  hiw-makiiig 
power  thought  it  good  policy  to  provide  that  this  species  of  convey- 
ance should  only  take  effect  from  the  time  of  recording  —  from  the 
time  that  notice  was  given  of  the  encumbrance  upon  the  public 
records  of  the  county.  Whether  the  policy  was  sound  or  not,  is  not 
for  us  to  say.  It  is  sufficient  for  us  to  know  that  such  is  the  policy. 
But  we,  in  fact,  believe  that  the  policy  is  good,  and  if  persevered  in, 
will  tend  to  prevent,  and  actually  will  prevent,  frauds.  We  have  no 
doubt  that,  under  this  construction,  frauds  may  be  practised  and 
hard  cases  arise.  The  case  before  the  court  is  a  hard  one.  Anna 
Parker  sold  her  land,  and  took  a  mortgage  to  secure  the  purchase 
money;  she  neglected  to  place  this  mortgage  upon  record.  She  may, 
in  consequence,  lose  the  debt,  but  it  will  not  do  to  bend  the  law  to 
prevent  its  operation  against  her. 

But,  as  between  ordinary  mortgages,  I  cannot  perceive  how  this 
construction  can  operate  improperly.  I  know  it  is  said  that  a  sub- 
sequent mortgagee,  with  notice,  defrauds  the  prior  mortgagee  by 
putting  his  mortgage  first  upon  record.  In  one  sense  of  the  word, 
perhaps  he  does,  but  there  is  no  actual  fraud.  Take  an  instance: 
A.  and  B.  are  creditors  of  C. ;  the  debts  are  eqiuil,  and  either  is  suf- 
ficient to  sweep  away  the  entire  property  of  the  debtor;  A.  seeks  his 
opportunity,  and  for  the  security  of  his  debt,  procures  a  mortgage 
upon  the  entire  property  of  C. ;  when  he  does  it,  he  knows  of  the 
debt  of  B.,  and  knows,  further,  that  his  mortgage  will  entirely  de- 
feat the  collection  of  that  debt.  Now,  in  the  common  acceptation 
of  the  term,  and  according  to  the  ideas  of  the  profession,  here  is  no 
fraud.  True,  B.  is  deprived  of  the  collection  of  his  debt,  but  there 
is  no  fraud.  A.  is  the  vigilant  creditor;  he  only  took  the  mortgage 
to  secure  what  was  honestly  his  due.  But  change  the  case:  A.  after 
having  procured  his  mortgage,  becomes  negligent,  he  does  not  place 
it  upon  record;  B.,  kiiowing  the  existence  of  that  mortgage,  but 
equally  anxious  to  secure  his  debt,  procures  a  mortgage,  and  places 
it  upon  record.  All  cry  out,  here  is  a  fraud.  Now,  my  perceptions 
are  so  obtuse,  that  I  can  perceive  no  difference,  in  a  moral  point 
of  view,  in  the  actions  of  these  two  men.  They  are  both  creditors, 
and  both  equally  anxious  to  secure  their  debts.  They  pursue  the 
course  pointed  out  by  law  to  effect  their  object.  The  one  is  the 
most  vigilant  to  get  his  mortgage  executed:  the  other,  to  get  his 
recorded.  The  course  of  neither  is  in  accordance  with  the  principles 
of  abstract  justice.  Such  justice  would  require  that,  inasmuch  as 
the  property  wa8  not  sufficient  to  pay  both,  it  should  be  equally 
divided  between  them. 

It  is  attempted,  in  this  case,  to  set  up  the  vendor's  lieu  for  the 
protection  of  Mrs.  Parker.  This  can  be  done  only  where  it  appears 
that  the  vendor  relied  upon  this  lien  as  security  for  the  payment  of 
the  purchase  money.  In  this  case,  a  note,  Avith  personal  security, 
was  given  for  the  purchase  money  in  the  first  instance,  and  subse- 
quently a  mortgage. 


706        MAYHAM    V.    COOMBS,    PARKER   AND   OTHERS       [CHAP.   XI 

It  is  urged  by  counsel,  that  although  as  between  mortgages,  the 
first  recorded  mortgage  must  prevail,  yet  that  an  unrecorded  mort- 
gage, being  in  equity  a  specific  lien,  must  prevail  as  against  a  prior 
judgment  lien,  which  is  general.  If  we  are  right  in  the  construction 
of  the  Statute,  if  a  mortgage  does  not  take  effect  until  recorded, 
in  other  words,  if  the  recording  is  part  and  parcel  of  the  execution, 
it  is  difficult  to  see  how  this  position  can  be  sustained.  If,  as  we 
suppose,  the  leading  motive  of  the  Legislature,  in  the  enactment  of 
the  law,  was  to  have  encumbrance  upon  land  placed  upon  the  record 
of  the  county,  to  adopt  the  principle  insisted  upon,  would  be  to  de- 
feat that  intention.  The  case  of  Lahe  v.  Bond,  10  Ohio  Rep.  415, 
is  cited  in  support  of  the  position  assumed  by  defendant's  counsel. 
In  that  case,  there  was  no  judgment  lien.  The  judgment  had  been 
reildered  in  a  county  different  from  the  one  in  which  the  land  in 
controversy  was  situated.  But  execution  had  been  levied  upon  the 
land  in  controversy,  and  it  had  been  sold.  The  purchaser  did  not  set 
up  any  claim  against  the  mortgage.  The  great  question  in  the  case 
was  a  question  of  fraud,  and  the  court  found,  not  that  there  was 
constructive  fraud,  but  that  an  actual  and  aggravated  fraud  had 
been  attempted  upon  the  rights  of  the  complainants.  The  question 
was  made  by  defendants,  whether  the  deed  of  the  complainant  would 
be  enforced,  not  being  a  legal  mortgage ;  and  the  court  held  that  it 
could,  and  cited,  as  authority,  the  case  of  the  Bank  of  Mushingum  v. 
Carpenter,  7  Ohio  Rep.  21.  The  case  in  7fh  Ohio  was  undoubtedly 
correctly  decided,  but  the  mortgage  in  controversy,  in  that  case,  was 
executed  long  before  the  Act  of  1831. 

In  the  case  of  Lahe  v.  Bond,  this  latter  Act  was  scarcely  taken  into 
consideration  by  the  court.  The  great,  the  leading  question,  as  before 
stated,  being  the  question  of  fraud. 

The  case  of  Magee  v.  Bell,  Administrator  of  Beatty,  8  Ohio  Rep. 
396,  was  one  in  which  the  question  as  to  priority  of  lien  was  raised. 
The  plaintiff  was  a  judgment  creditor  of  Thos.  T.  Beatty;  the 
intestate  was  a  creditor  whose  debt  was  secured  by  mortgage.  The 
mortgage  was  delivered  for  record,  before  the  first  day  of  the  term, 
when  the  judgment  was  entered,  but  was  not  copied  into  the  record 
until  afterwards.  When  the  case  was  first  under  consideration,  the 
question  was,  whether  the  mortgage  should  take  effect  from  the  time 
of  its  delivery  for  record,  or  from  the  time  it  w^as  actually  copied  into 
the  record.  If  from  the  time  of  delivery  for  record,  the  mortgage 
in  the  case  then  before  the  court,  was  to  be  preferred  to  the  judgment. 
If  from  the  time  it  was  actually  copied  into  the  record,  then  the  lien 
of  the  judgment  was  the  preferable  lien.  Upon  this  question,  the 
court  divided  in  opinion,  and  this  division  of  opinion  induced  the 
Legislature  to  pass  the  declaratory  Act  of  March,  1838.  In  that 
case,  it  is  evident  that  the  court  considered  that  the  lien  of  a  judg- 
ment must  be  preferred  to  any  lien  of  an  unrecorded  mortgage. 

Upon  the  whole,  the  court  are  of  opinion  that  the  judgment  of 


SECT.   Ill]  POMROY    V.    STEVENS  707 

Kagler  is  the  preferable  lien  upon  the  one  hundred  acres  of  land,  and 
that  the  mortgage  of  the  complainant  must  be  preferred  to  that  of 
Anna  Parker.  As  we  suppose  the  case  was  reserved  for  the  purpose 
of  settling  this  point,  we  shall  not  now  enter  a  final  decree,  nor  order 
a  sale  of  the  mortgaged  premises;  but  the  case  will  be  referred  to  a 
master,  to  ascertain  the  amount  due  upon  the  respective  liens,  with 
instructions  to  report  at  the  next  term  of  the  court  in  Clermont 
County. 

In  making  this  inquiry,  the  master  will  examine  the  conii)lainant 
on  oath,  touching  the  consideration  of  the  debt  secured  by  his 
mortgage.  In  the  answer  of  Anna  Parker,  she  charges  that  much  of 
the  consideration  of  this  note  is  exorbitant  interest,  such  exorbitant 
interest  being  compounded;  and  she  calls  upon  complainant,  by  inter- 
rogatories, to  answer  this  charge.  This  he  refuses  to  do,  and,  as  he 
says,  under  the  advice  of  counsel,  that  he  is  not  obliged  to  do  it.  We 
differ  from  counsel  on  this  point;  the  interrogatories  must  be 
answered,  or  what  will  result  in  the  same  thing,  the  complainant 
must  answer  on  oath  before  the  master.^ 


POMROY  V.  STEVENS. 

11  Met.  (Mass.)  244.     1846. 

Writ  of  entry  to  recover  forty-three  acres  of  land  in  Hancock. 
At  the  trial  before  Shaw,  C.  J.,  both  parties  claimed  title  to  the 
demanded  premises  under  Hiram  Chapman.  The  demandant  claimed 
under  a  levy  upon  the  premises,  made  on  the  Sth  of  November,  184-2, 
upon  an  execution  against  said  Chapman,  in  pursuance  of  an  attach- 
ment alleged  to  have  been  made  on  the  6th  of  December,  1841.  The 
tenant  claimed  under  a  deed  of  the  premises,  made  to  him  by  said 
Cliapman,  on  the  4th  day  of  February,  1839,  acknowledged  on  the 
same  day,  and  recorded  on  the  10th  of  December,  1842. 

Several  objections  (which  need  not  be  here  stated)  were  nuide  to 
the  legality  and  sufficiency  of  the  dcnumdant's  said  levy,  which  were 
overruled  by  the  judge. 

An  objection  Avas  then  made  to  the  demandant's  attachment  of  the 
demanded  premises,  on  the  ground  of  a  discrepancy  between  the 
officer's  return  thereof  on  the  original  writ  and  his  return  on  the 
copy  deposited  in  tlic  clerk's  office  and  entered  in  tlie  clerk's  book, 
pursuant  to  Kev.  Sts.  r.  90,  §§  28-30.  The  attachment  on  the  writ 
purported  to  be  made  on  the  7th  of  December,  1S41,  whereas,  on  said 
copy,  it  was  stated  to  be  on  the  6th  of  said  December.  The  judge 
ruled,  first,  that  this  slight  misdescription  of  the  attachment  did  not 
raise  a  doubt  of  its  identity,  nor  aifect  any  one's  rights;  and  socondhj, 

1  See  Bercaw  v.  CockcriU,  20  Ohio  St.  163;  2  Jones,  Real  Prop.,  §  1.501. 


708  POMROY    V.    STEVENS  [CHAP.   XI 

that,  as  the  tenant  did  not  claim  under  any  subsequent  conveyance 
or  attachment,  by  the  terms  of  the  Statute  he  could  not  take  advan- 
tage of  such  misdescription. 

The  defence  was,  that  the  demandant,  when  ho  made  his  levy,  and 
when  he  made  his  attachment,  had  actual  notice  of  the  tenant's  prior 
unrecorded  deed.  In  support  of  this  defence,  the  tenant  offered 
evidence  to  show  that  he  was  in  the  open  occupation  and  possession 
of  the  demanded  premises;  that  he  pastured  part  thereof,  and  culti- 
vated other  parts  thereof;  and  that  this  was  so  open  and  visible  as  to 
warrant  a  belief  that  the  demandant  knew  it.  This  evidence  was 
objected  to  as  incompetent,  having  no  tendency  to  prove  knowledge 
of  a  pre-existing  title  by  deed,  rather  than  a  tenancy  for  years  or 
at  will.  Whereupon  the  judge  ruled,  that  such  acts  of  occupation 
and  improvement  were  not  competent  evidence,  unless  connected  with 
some  admission  or  declaration  of  the  demandant,  showing  that  he 
attributed  such  acts  to  the  existence  of  a  previous  conveyance. 

The  tenant  then  proposed  to  prove  some  improvements  of  a  more 
expensive  and  permanent  character,  such  as  an  owner  only  would  be 
likely  to  make;  and  for  this  purpose  he  offered  to  prove  that  he  joined 
with  a  neighbor  who  had  purchased  another  part  of  said  Hiram 
Chapman's  land,  and  put  his  deed  on  record,  in  building  a  partition 
rail  fence,  of  considerable  extent.  But  the  judge  ruled,  that  such 
fencing  fell  under  the  rule  before  stated,  in  regard  to  possession, 
occupation,  and  improvement,  and  had  no  tendency  to  prove  a  pre- 
existing deed. 

The  tenant's  counsel  declined  going  to  the  jury  upon  the  question 
of  fact,  and  consented  to  a  verdict  for  the  demandant,  subject  to  the 
opinion  of  the  whole  court  upon  the  rulings  at  the  trial. 

Wilde,  J.  The  parties  in  this  case  both  claim  their  titles  under 
Hiram  Chapman ;  and  the  general  question  is,  which  party  has  the 
better  title. 

The  tenant  claims  under  a  deed  dated  February  4th,  1839,  acknowl- 
edged the  same  day,  but  not  recorded  until  the  10th  of  December, 
1842.  The  demandant  claims  under  a  levy  of  an  execution,  alleged 
to  have  been  made  on  the  8  th  of  November,  1842,  in  pursuance  of  an 
attachment  alleged  to  have  been  made  on  the  6th  of  December,  1841. 

Several  objections  were  taken,  at  the  trial,  to  the  legality  of  the 
demandant's  levy;  but  they  were  all  overruled,  and  no  exceptions 
were  taken  to  the  ruling  of  the  court  in  this  respect.  An  objection 
was  also  made  to  the  validity  of  the  attachment,  on  the  ground  that 
in  the  copy  left  at  the  clerk's  office  there  was  a  misdescription  as  to 
the.  day  when  the  attachment  was  made ;  the  attachment  purporting 
to  have  been  made  on  the  7th  of  December,  and  in  the  clerk's  book 
it  was  stated  to  be  on  the  6th  of  December.  But  this  objection  is 
immaterial,  as  the  tenant  was  a  previous  purchaser,  and  could  not 
have  been  prejudiced  by  this  slight  mistake.  The  Rev.  Sts.  c.  90, 
§  28,  provide  that  "  no  attachment  of  real  estate,  on  mesne  process, 


SECT.    Ill]  POMROY    V.    STEVENS  709 

shall  be  valid  against  any  subsequent  attaching  creditor,  or  against 
any  person  who  shall  afterwards  purchase  the  same,"  ^e.  "  unless 
the  original  writ  or  a  copy  thereof,  and  so  much  of  the  officer's  return 
thereon  as  relates  to  the  attachment  of  such  estate,  shall  be  deposited 
iu  the  office  of  the  clerk  of  the  court,"  &c.  This  provision  is  made 
for  the  benefit  of  subsequent  purchasers  and  attaching  creditors,  and 
by  them  only  can  advantage  be  taken  of  any  non-compliance  there- 
with. 

The  remaining  objection  to  the  demandant's  title  is  that  on  which 
the  tenant  principally  relies.  He  contends,  that  at  the  time  of  the 
demandant's  attachment  and  the  levy  of  his  execution,  the  demandant 
had  actual  notice  of  the  tenant's  prior  title;  and  he  offered  evidence 
to  prove  that,  before  the  attachment,  he  was  in  the  open  and  ^dsible 
possession  of  the  demanded  premises,  cultivating  the  same,  and 
making  improvements  of  a  permanent  character  thereon;  and  he 
contended  that  this  was  competent  and  sufficient  evidence  to  warrant 
the  jury  in  finding  that  the  demandant  had  actual  notice  of  the 
tenant's  title.  But  the  presiding  judge  was  of  a  different  opinion, 
and  ruled  accordingly.  Whether  the  demandant  had  notice  of  the 
tenant's  title  or  not,  was  a  question  of  fact  for  the  jury  to  decide. 
But  the  competency  and  sufficiency  of  the  evidence  to  prove  the  fact 
were  within  the  province  of  the  court  to  determine;  and  we  are  all 
of  opinion  that  the  ruling  of  the  presiding  judge  on  this  point  was 
w'ell  founded. 

Before  the  Rev.  Sts.  c.  59,  §  28,  the  open  and  notorious  possession 
and  improvement  of  real  estate,  by  a  party  entering  under  a  deed  not 
registered,  was,  in  general,  sufficient  evidence  from  which  notice 
of  such  deed  might  be  inferred  or  implied,  so  as  to  avoid  a  subsequent 
deed  or  attachment.  But  to  have  that  effect,  the  evidence  must  have 
been  such  as  to  render  the  inference  not  merely  probable,  but  neces- 
sary and  unquestionable.  M'Mechan  v.  Griffing,  3  Pick.  149.  But 
since  the  Rev.  Sts.  c.  59,  §  28,  no  implied  or  constructive  notice  of 
an  unregistered  deed  can  avoid  a  subsequent  deed  or  attachment. 
The  Statute  expressly  provides  that  no  conveyance  of  real  estate  shall 
be  valid  and  effectual,  against  any  person  other  than  the  grantor  and 
his  heirs  and  devisees,  and  persons  having  actual  notice  thereof, 
unless  it  is  made  by  a  deed  recorded  as  the  Statute  directs.  Since 
this  provision,  no  implied  or  constructive  notice  of  an  unregistered 
deed  will  give  it  validity  against  a  subsequent  purchaser  or  attach- 
ing creditor.  It  is  not  sufficient  to  prove  facts  that  would  reasonably 
put  him  on  inquiry.  He  is  not  bound  to  inquire;  but  the  party 
relying  on  an  unregistered  deed,  against  a  subsequent  purchaser  or 
attaching  creditor,  must  prove  that  the  latter  had  actual  notice  or 
knowledge  of  such  deed.  The  evidence  offered  was  clearly  insufficient 
to  prove  any  such  notice  or  knowledge.  A  tenant  for  years,  or  at 
will,  may  have  possession  of  real  estate,  and  may  build  fences,  and 
make  other  improvements  thereon;  or  a  party  may  have  possession, 
and  make  improvements,  without  any  title  by  deed  or  by  lease. 


710  KIRBY    V.    TALLMADGE  [CHAP.   XI 

The  evidence  of  such  possession  and  improvements  is  wholly  in- 
sufficient to  prove  that  the  party  in  possession  holds  under  a  con- 
veyance to  him  in  fee  simple.  The  evidence  offered,  therefore,  would 
not  have  warranted  the  inference  that  the  demandant  had  any  notice 
or  knowledge  of  the  tenant's  title-deed. 

Judgment  on  the  verdict} 


KIEBY  v.  TALLMADGE. 

160  U.  S.  379.     1895. 

This  was  a  bill  in  equity  filed  by  Maria  E.  Tallmadge  against 
the  appellants,  to  set  aside  and  remove,  as  a  cloud  upon  her  title, 
a  deed  made  by  the  appellants  Richard  H.  Miller,  Elizabeth 
Houchens,  and  Ella  A.  Goudy,  claiming  to  be  heirs  at  law  of  one 
John  L.  Miller,  deceased,  dated  August  30,  1888,  and  purporting  to 
convey  to  the  appellant  Kirby  the  property  therein  described.  The 
bill  further  prayed  for  the  cancellation  of  a  trust  deed  executed  by 
the  appellant  Kirby  and  his  wife  to  the  defendants  Willoughby  and 
Williamson,  and  for  an  injunction  against  all  the  defendants  except 
Kirby,  restraining  them  from  negotiating  certain  notes  given  by 
Kirby  for  the  purchase  of  said  lots,  etc. 

The  facts  disclosed  by  the  testimony  sIioav  that,  in  1882,  Mrs. 
Tallmadge,  the  appellee,  purchased  of  one  Bates,  for  a  home,  lots 
Nos.  77  and  78,  in  square  239,  in  the  city  of  Washington,  with  the 
improvements  thereon,  for  the  sum  of  ten  thousand  dollars,  five 
thousand  of  which  were  paid  in  cash,  the  residue  to  be  paid  in  five 
instalments  of  one  thousand  dollars  each.  Instead  of  taking  the 
title  to  the  property  in  herself,  she  furnished  the  money  to  John  L. 
Miller,  a  friend  of  the  family,  who  paid  the  $5000  cash,  with  the 
money  thus  furnished,  and  at  her  request  took  the  title  in  his  own 
name,  and  executed  notes  for  the  deferred  payments,  which  he 
secured  by  a  deed  of  trust  upon  the  property.  Subsequently,  and 
in  June,  1883,  Miller  also  purchased  with  the  funds  of  Mrs.  Tall- 
madge the  adjoining  lot  No.  76,  taking  title  in  his  own  name,  and 
executing  a  deed  of  trust  for  the  deferred  payments,  amounting 
to  $1266. 

Mrs.  Tallmadge  took  immediate  possession  of  the  premises,  and 
had  occupied  them  as  her  own  from  that  day  to  the  time  the  bill 
was  filed,  paying  taxes,  improvements,  and  interest  on  incumbrances, 
reducing  the  principal  $2266,  and  holding  open  and  notorious  posses- 
sion under  her  claim  of  title. 

Mr.  Miller,  who  claimed  no  title  or  right  to  the  premises  in  him- 
self, on  December  27,  1883,  by  a  deed  signed  by  himself  and  Avife, 

1  Compare  Toupin  v.  Peabody,  162  Mass.  573;  Savannah  Timber  Co.  v. 
Deer  Island  Co.,  258  F,  R.  777,  782. 


SECT.    Ill]  KIRBY    V.   TALLMADGE  711 

conveyed  the  legal  title  to  Mrs.  Tallmadge,  but  this  deed,  through 
inadvertence  or  otherwise,  was  not  recorded  until  October  4,  1888. 
Mr.  Miller  died  in  February,  1888,  and  by  his  will,  which  was  dated 
December  1,  1880,  devised  his  estate  to  his  widow. 

On  June  16,  1888,  defendants  Miller,  Houchens,  and  Goudy, 
collateral  heirs  of  John  L.  Miller,  who  had  made  a  contract  with 
the  defendants  Willoughby  and  Williamson  to  give  them  one  quarter 
of  whatever  they  could  get  for  them  out  of  the  estate  of  Miller, 
filed  a  bill  in  the  Supreme  Court  of  the  District  against  the  widow 
and  executor  of  Miller,  the  holders  of  the  notes  given  by  him,  and 
tha  trustees  in  one  of  the  deeds  of  trust,  praying  for  a  partition 
or  sale  of  the  property,  the  admeasurement  of  the  widow's  dower, 
and  for  a  charge  upon  the  personal  estate  of  Miller  for  the  unpaid 
purchase  money  of  the  property. 

To  this  bill  the  widow  of  John  L.  Miller  made  answer  that  her 
husband  never  had  any  interest  in  the  property  in  question;  that 
the  title  was  taken  in  his  name  for  Mrs.  Tallmadge;  and  that  long 
before  his  death  he  had  by  deed  duly  conveyed  it  to  her,  and  that 
neither  she  nor  his  estate  had  or  had  ever  had  any  interest  in  the 
property.  In  August,  1888,  the  pendency  of  this  suit  coming  to 
the  knowledge  of  Mrs.  Tallmadge,  she  sent  the  original  deed  from 
Miller  to  her,  then  unrecorded,  by  Mr.  Tallmadge  to  Willougliby 
and  Williamson,  solicitors  for  Miller's  heirs,  who  examined  and 
made   minutes   from   it. 

On  August  30,  1888,  Houchens,  Goudy,  and  Miller,  Avho  had 
filed  the  bill  for  partition,  executed  a  deed  conveying  the  property 
to  the  appellant  Kirby,  subject  to  the  dower  rights  of  Mrs.  Miller, 
for  a  consideration  of  $12,000,  $3000  of  which  were  said  to  have 
been  paid  in  cash  and  $9000  by  notes  secured  by  a  mortgage  or 
trust  deed  upon  the  property,  to  Willoughby  and  Williamson  as 
trustees.  Kirby  thereupon  claimed  the  property  as  an  innocent 
purchaser  without  notice  of  the  prior  deed.  He  at  once  gave  notice 
to  Mr.  Tallmadge  that  he  would  demand  I'ent  for  the  property  at 
the  rate  of  $1000  per  annum. 

On  receii)t  of  this  notice  Mrs.  Tallmadge  filed  this  bill  to  cancel 
and  set  aside  the  deed  and  deed  of  trust.  Answers  were  filed  by 
the  defendants  and  testimony  taken  by  the  plaintiff,  tending  to  show 
the  facts  alleged  in  her  bill.  N^either  of  the  appellants  took  proof, 
nor  did  they  or  either  of  them  offer  themselves  as  witnesses,  but 
stood  upon  tlieir  answers. 

Upon  final  hearing,  the  court  below,  in  special  term,  rendered 
a  decree  in  accordance  with  the  prayer  of  the  bill,  setting  aside 
the  deed  and  deed  of  trust  as  fraudulent  and  void,  from  which 
decree  defendants  appealed  to  the  General  Term,  which  affirmed 
the  decree  of  the  court  below,  and  further  directed  that  Miller,  on 
the  demand  of  Kirby,  return  to  him  the  $3000  which  Kirby  claimed 
to  have  paid,  and  which  Miller  admitted  to  have  received. 


712  KIRBY    V.   TALLMADGE  [CHAP.   XI 

From  this  decree  defendants  appealed  to  this  court. 

Mr.  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  controversy  in  this  case  arises  from  the  fact  that  the  deed 
from  John  L.  Miller  to  Mrs.  Tallmadge,  which  was  given  December 
27,  1883,  was  not  put  upon  record  until  October  4,  1888.  In  the 
meantime,  and  in  February,  1888,  Miller,  in  whose  name  the  property 
had  been  taken  for  the  benefit  of  Mrs.  Tallmadge,  died;  and  on 
August  30,  1888,  Houchens,  Goudy,  and  Richard  Henry  Miller, 
collateral  heirs  of  John  L.  Miller,  executed  a  deed  of  the  property, 
subject  to  the  doHver  rights  of  Miller's  widow,  to  defendant  Kirby 
for  an  expressed  consideration  of  $12,000,  of  which  $3000  are  said 
to  have  been  paid  down  in  cash,  and  $9000  in  notes,  payable  to 
Willoughby  and  Williamson.  Kirby  now  claims  to  be  an  innocent 
purchaser  of  the  property,  without  notice  of  the  prior  deed  from 
John  L.  Miller  to  Mrs.  Tallmadge. 

There  are  several  circumstances  in  this  case  which  tend  to  arouse 
a  suspicion  that  Kirby's  purchase  of  the  property  was  not  made 
in  good  faith.  Within  three  months  after  the  probate  of  the  will 
of  John  L.  Miller,  his  collateral  heirs,  Houchens,  Groudy,  and  Richard 
H.  Miller,  who  had  made  a  contract  with  Willoughby  and  William- 
son to  give  them  one  quarter  of  whatever  they  could  get  for  them 
out  of  the  estate  of  Miller,  filed  a  bill  for  the  partition  of  real  estate, 
and  to  set  off  the  widow's  dower.  His  widow,  Lola,  answered, 
admitted  that  her  husband  did  not  purchase  the  lands  described 
in  the  bill,  and  alleged  that  he  had  conveyed  them  away  in  his  life- 
time. 

Mrs.  Tallmadge,  hearing  of  this  suit,  instead  of  appearing  formally 
therein,  submitted  her  deed  from  Miller  to  the  solicitors  for  the 
complainants  in  the  partition  suit,  who  did  not  amend  their  bill  or 
make  her  a  party,  but  apparently  allowed  the  suit  to  drop ;  inasmuch 
as  the  complainants,  being  heirs  of  John  L.  Miller,  took  only  his 
actual  interest  in  the  land,  of  which,  owing  to  his  deed  to  Mrs.  Tall- 
madge in  his  lifetime,  nothing  remained  at  his  death.  Shortly 
thereafter,  the  complainants  in  that  suit,  who  must  have  been  well 
aware  that  they  had  no  title  to  the  property,  executed  a  deed  to 
Kirby  of  all  their  interest  in  the  land  for  a  consideration  of  $12,000, 
subject  to  the  dower  right  of  Mrs.  Miller,  the  debts  of  John  L.  Miller, 
and  so  much  of  the  notes  of  $5000  as  were  unpaid,  after  applying 
his  personal  estate.  Kirby  alleges  in  his  answer  that  he  examined 
the  premises  twice  and  approached  the  house,  but  never  seems  to  have 
entered  it,  and  apparently  took  up  with  the  first  proposition  made 
to  him  to  buy  it,  without  any  of  the  bargaining  that  usually  pre- 
cedes the  consummation  of  a  sale  of  property  of  that  value.  While 
he  avers  in  his  answer,  and  Miller  admits,  the  payment  of  $3000 
in  cash,  defendants  introduced  no  testimony  whatever  in  support 
of  their  case,  but  relied  solely  upon  their  ansAvers.     As  they  had 


SECT.    Ill]  KIRBY    V.    TALT.MADCE  713 

it  in  their  power  to  explain  the  susi)icious  circumstances  connected 
with  the  transaction,  we  regard  their  faihire  to  do  so  as  a  proper 
subject  of  comnaent.  "All  evidence,"  said  Lord  Mansfield  in  Blafch 
V.  Archer,  (Cowper,  63,  65,)  "  is  to  be  weighed  according  to  the 
proof  which  it  was  in  the  po'wer  of  one  side  to  have  produced  and 
in  the  power  of  the  other  side  to  have  contradicted."  It  would 
certainly  have  been  much  more  satisfactory  if  the  defendants,  who 
must  have  been  acquainted  with  all  the  facts  and  circumstances 
attending  this  somewhat  singular  transaction,  had  gone  upon  the 
stand  and  given  their  version  of  the  facts.  McDonough  v.  O'Xiel, 
313  Mass.  92;  CommonivcaUh  v.  Webster,  5  Cush.  295,  316.  It  is 
said  by  Mr.  Starkie,  in  his  work  on  Evidence,  vol.  1,  p.  54 :  "  The 
conduct  of  the  party  in  omitting  to  produce  that  evidence  in  elucida- 
tion of  the  subject-matter  in  dispute,  which  is  within  his  power,  and 
which  rests  j^eculiarly  within  his  own  knowledge,  frequently  affords 
occasion  for  presumptions  against  him,  since  it  raises  strong  suspi- 
cion that  such  evidence,  if  adduced,  would  operate  to  his  prejudice." 

But  the  decisive  answer  to  the  case  of  hona  -fide  purchase  made 
by  the  defendant  Kirby  is,  that  Mrs.  Tallmadge  had,  ever  since  the 
original  purchase  of  the  land  by  Miller  in  1882,  been  in  the  open, 
notorious,  and  continued  possession  of  the  property,  occupying  it 
as  a  home.  The  law  is  perfectly  well  settled,  both  in  England  and 
in  this  country,  except  perhaps  in  some  of  the  New  England  States, 
that  such  possession,  under  apparent  claim  of  ownership,  is  notice 
to  purchasers  of  whatever  interest  the  person  actually  in  possession 
has  in  the  fee,  whether  such  interest  be  legal  or  equitable  in  its 
nature,  and  of  all  facts  which  the  proposed  purchaser  might  have 
learned  by  due  inquiry.  2  Pomeroy's  Eq.  Juris.  §  614;  Wade  on 
Notice,  §  273.  The  same  principle  was  adopted  by  this  court  in 
Landes  v.  Brandt,  10  How.  348,  375,  in  which  it  was  held  that  "  open 
and  notorious  occupation  and  adverse  holding  by  the  first  purchaser, 
when  the  second  deed  is  taken,  is  in  itself  sufficient  to  Avarrant  a  jury 
or  court  in  finding  that  the  purchaser  had  evidence  before  him  of  a 
character  to  put  him  on  inquiry  as  to  what  title  the  possession  was 
held  under;  and  that  he,  the  subsequent  purchaser,  was  bound  by 
that  title,  aside  from  all  other  evidence  of  such  possession  and  hold- 
ing." The  principle  has  been  steadily  adhered  to  in  subsequent  deci- 
sions. Lea  V.  Polk  County  Copper  Co.,  21  How.  493,  498;  Hughes 
V.  United  States,  4  Wall.  232,  236;  Noyes  v.  Ha-IJ,  97  U.  8.34; 
McLean  v.  Clapp,  141  U.  S.  429,  436;  Simmon.^  Creek  Coal  Co. 
V.  Boran,  142  U.  S.  417.^ 

Defendants'  reply  to  this  proposition  is  that  the  occupancy  in  tliis 
case,  being  that  of  a  husband  and  wife,  is  by  law  referable  to  the 
husband  alone  as  the  head  of  the  family;  that  the  purchaser  was 
not  bound  by  any  notice,  except  such  as  arose  fi-om   the  possession 

1  See  3  Devlin,  Deeds,  3d  etl.,  §§  760-764. 

Compare  Slinger  v.  Sterrett,  283  III.  82;  Junes  v.  Nichuh,  280  Mo.  653. 


714  KIRBY    V.    TALLMADGE  [CHAP.    XI 

of  the  husband,  and  that,  as  he  had  no  title  to  the  property,  Kirby 
was  not  bound  to  ascertain  whether  other  members  of  the  family 
had  title  or  not.  There  are  undoubtedly  eases  holding  that  occupa- 
tion by  some  other  person  than  the  one  holding  the  unrecorded  deed, 
is  no  notice  of  title  in  such  third  person,  and  that  the  apparent 
possession  of  premises  by  the  head  of  a  family  is  no  notice  of  a 
title  in  a  mere  boarder,  lodger,  or  subordinate  member  of  such  family, 
or  of  a  secret  agreement  between  the  head  of  a  family  and  another 
person.  As  was  said  by  this  court  in  Townsend  v.  Little,  109  U.  S. 
504,  511:  "Where  possession  is  relied  upon  as  giving  constructive 
notice  it  must  be  open  and  unambiguous,  and  not  liable  to  be  mis- 
understood or  misconstrued.  It  must  be  sufficiently  distinct  and 
unequivocal,  so  as  to  put  the  purchaser  on  his  guard."  In  this  case 
one  James  Townsend  bought  and  took  possession  of  a  public  house 
in  Salt  Lake  City,  and  lived  in  it  with  his  lawful  wife  and  a  plural 
or  polygamous  wife,  the  latter,  who  was  the  appellant,  taking  an 
active  part  in  conducting  the  business  of  the  hotel.  He  subsequently 
ceased  to  maintain  relations  with  the  appellant  as  his  polygamous 
wife,  but,  being  desirous  of  having  the  benefit  of  her  services,  both 
concealed  this  fact.  He  made  a  secret  agreement  with  her  that  if 
she  would  thus  remain,  she  should  have  a  half  interest  in  the 
property.  He  afterwards  acquired  his  legal  title  to  the  property 
without  a  disclosure  of  the  secret  agreement.  His  interest  therein 
having  subsequently  passed  into  the  hands  of  innocent  third  parties 
for  value  without  notice  of  appellant's  claim  under  the  secret  agree- 
ment, it  was  held  that  the  joint  occupation  of  the  premises  by  herself 
and  Townsend,  under  the  circumstances,  was  not  a  constructive  notice 
of  her  claim,  and  that  she  had  no  rights  in  the  premises  as  against  a 
bona  fide  purchaser  without  notice.  There  were  evidently  two  sub- 
stantial reasons  why  appellant's  possession  was  not  notice  of  her 
rights.  First,  James  Townsend  took  the  legal  title  to  himself  in  1873 
and  held  it  until  1878,  when  the  purchase  was  made;  and,  second,  his 
agreement  with  the  appellant  was  not  one  with  his  lawful  but  his 
polygamous  wife,  and  was  also  a  secret  one.  The  case  is  obviously 
not  one  of  a  joint  occupation  by  a  husband  and  his  laAvful  wife,, 
neither  of  them  having  any  title  thereto. 

In  the  case  of  Thomas  v.  Kennedy,  24  Iowa,  397,  it  was  held 
that,  where  real  estate  is  ostensibly  as  much  in  the  possession  of 
the  husband  as  the  wife,  there  is  no  such  actual  possession  by  the 
wife  as  will  impart  notice  of  an  equitable  interest  possessed  by  her 
in  the  land,  to  a  purchaser  at  execution  sale  under  a  judgfnent  against 
her  Tiushand,  in  whom  the  legal  title  apparently  was  at  the  time  of 
the  rendition  of  the  judgment.  This  case  is  also  a  mere  application 
of  the  rule  that,  if  there  be  any  title  to  the  land  in  one  who  is  in 
possession  of  it,  the  possession  will  be  referred  to  that  title,  or,  as 
said  in  2  Ponieroy's  Eq.  §  616:  "Where  a  title  under  which  the 
occupant  holds  has  been  put  on  record,  and  his  possession  is  con- 


SECT.    Ill]  KIRBY    V.   TALLMADGE  715 

sistent  with  what  thus  appears  of  record,  it  shall  not  be  a  constructive 
notice  of  any  additional  or  different  title  or  interest  to  a  purchaser 
who  has  relied  upon  the  record,  but  has  had  no  actual  notice  beyond 
Avhat  is  thereby  disclosed."  That  the  court  did  not  intend  to  hold 
that  a  joint  occupation  by  a  husband  and  wife  is  in  no  case  notice  of 
more  than  the  occupation  of  the  husband,  is  evident  from  the  subse- 
quent case  of  the  Iowa  Loan  and  Trust  Co.  v.  King,  58  Iowa,  598, 
in  which  the  court  said :  "  It  cannot,  we  think,  be  doubted  that  posses- 
sion of  real  property  by  a  husband  and  wife  together,  will  impart 
notice  of  the  wife's  equities  as  against  all  persons  other  than  those 
claiming  under  the  husband,  their  possession  being  regarded  as 
joint  by  reason  of  the  family  relation."  In  this  case  the  occupation 
was  by  a  husband  and  wife,  and  it  was  held  that  such  possession 
Avas  notice  of  a  title  in  the  wife  to  a  life  estate  in  the  property  as 
against  the  holder  of  a  mortgage  given  by  a  son,  who  was  a  member 
of  the  family  as  a  boarder,  lodging  a  part  of  the  time  in  his  mother's 
house,  and  a  part  of  the  time  elsewhere  —  the  legal  title  being  in 
the  son. 

In  the  case  of  Lindley  v.  Martindale,  78  Iowa,  379,  the  title  to  the 
lands  was  in  a  son  of  the  plaintiff,  who  resided  on  a  portion  of 
them,  while  plaintiff  and  her  husband  resided  on  another  portion. 
The  lands  had  for  a  long  time  been  cared  for  either  by  the  husband  or 
the  son,  and  it  was  held  that  one  who,  upon  being  told  that  the  title 
was  in  the  son,  took  a  mortgage  from  him  to  secure  a  loan,  which 
was  used  for  the  most  part  to  pay  off  prior  incumbrances  placed 
on  the  land  by  the  son,  was  not  charged  with  the  alleged  equities  of 
plaintiff  by  reason  of  her  claimed  possession  of  the  land,  the  court 
holding  that  her  possession  was  not  such  as  the  law  requires  to 
impart  notice.     The  case  is  not  entirely  reconcilable  with  the  last. 

In  Harris  v.  Mclntyre,  118  Illinois,  275,  a  widow  furnished  her 
bachelor  brother  money  with  which  to  buy  a  farm  for  their  joint 
use,  the  title  to  be  taken  to  each  in  proportion  to  the  sum  advanced 
by  them,  respectively.  He,  however,  took  a  conveyance  of  the  en- 
tire estate  to  himself,  and  they  both  moved  upon  the  place,  he  manag- 
ing the  land,  and  she  attending  to  the  household  duties.  The  deed 
was  recorded,  and  he  borrowed  money,  mortgaged  the  land  to  secure 
tlic  loan,  and  appeared  to  the  world  as  the  owner  for  a  period  of 
over  ten  years,  during  which  time  the  sister  took  no  steps  to  have 
her  equitable  rights  enforced  or  asserted.  It  was  held  that  her 
possession,  under  such  circumstances,  was  not  such  as  would  charge 
a  subsequent  purchaser  from  her  brother  with  notice  of  her  equita- 
ble rights.  Here,  too,  the  record  title  was  strictly  consistent  with 
the  possession. 

In  Ranl'in  v.  Coar.  46  ]^.  J.  Eq.  566,  572,  a  widow,  who  occupied 
part  of  a  house  in  which  she  was  entitled  to  dower,  while  her  son, 
the  sole*  heir  at  law,  occupied  the  rest  of  the  house,  released  her 
dower  therein  to  her  son  by  deed  duly  recorded.     It  was  held  that 


716  KIRBY    V.    TALLMADGE  [CHAP.   XI 

her  continued  occupation  thereafter  would  not  give  notice  to  one  who 
took  a  mortgage  from  the  son,  of  a  title  in  her  to  a  part  of  the  house 
occupied  by  her,  acquired  by  an  unrecorded  deed  to  her  from  her  son 
contemporaneous  with  her  release  of  dower.  "  Possession,"  said  the 
court,  ''  to  give  notice  or  to  make  inquiry  a  duty,  must  be  open 
notorious,  and  unequivocal.  There  must  be  such  an  occupation  of 
the  premises  as  a  man  of  ordinary  prudence,  treating  for  the  acqui- 
sition of  some  interest  therein,  would  observe,  and,  observing  would 
perceive  to  be  inconsistent  with  the  right  of  him  Avith  Avhom  he  was 
treating,  and  so  be  led  to  inquiry." 

So  in  Atwood  v.  Bearss,  47  Mich.  72,  the  title  to  property  upon 
the  record  appeared  to  be  in  the  wife.  Her  husband's  previous 
occupation  had  been  under  her  ownership,  and  in  right  of  the 
marital  relation,  and  nothing  had  transpired  to  suggest  that  she  had 
made  the  property  over  to  him.  She  had,  however,  given  him  a 
deed,  which  was  not  upon  record.  It  was  held  that  his  continuance 
in  possession  was  no  notice  of  this  deed,  since  it  was  obviously  con- 
sistent with  the  previous  title  in  herself. 

Indeed,  there  can  be  no  doubt  whatever  of  the  proposition  that, 
where  the  land  is  occupied  by  two  persons,  as  for  instance,  by  hus- 
band and  wife,  and  there  is  a  recorded  title  in  one  of  them,  such  joint 
occupation  is  not  notice  of  an  unrecorded  title  in  the  other.  In 
such  case,  the  purchaser  finding  title  in  one,  would  be  thrown  off 
his  guard  with  respect  to  the  title  of  the  other.  The  rule  is  universal 
that  if  the  possession  be  consistent  with  the  record  title,  it  is  no 
notice  of  an  unrecorded  title. ^  But,  where  the  land  is  used  for  the 
purpose  of  a  home,  and  is  jointly  occupied  by  husband  and  wife, 
neither  of  whom  has  title  by  record,  w^e  think  that  in  view  of  the 
frequency  with  which  homestead  property  is  taken  in  the  name  of 
the  wife,  the  proposed  purchaser  is  bound  to  make  some  inquiry 
as  to  their  title. 

The  case  of  Phelan  v.  Brady,  119  'N.  Y.  587,  is  an  instance  of  this. 
In  this  case  a  suit  was  brought  to  foreclose  a  mortgage  upon  certain 
premises,  given  by  one  Murphy,  who  held  an  apparently  perfect 
record  title  to  the  property.  It  appeared,  however,  that  before  the 
execution  of  the  mortgage,  Murphy  had  conveyed  the  premises  to 
one  Margaret  Brady,  who  was  in  possession,  and  with  her  husband 
occupied  two  rooms  in  the  building  on  the  premises.  She  also  kept 
a  liquor  store  in  a  part  thereof.  The  other  rooms  she  leased  to 
various  tenants,  claiming  to  be  the  owner  and  collecting  the  rents. 
Her  deed  was  not  recorded  until  after  the  giving  of  the  mortgage. 
It  was  held  that  her  actual  possession  under  her  deed,  although  unre- 
corded and  its  existence  unknown  to  plaintiff,  was  sufficient  notice 
to  him  of  her  rights  to  defeat  any  claim  under  the  mortgage.     This 

1  See  Schumacher  v.  Truynan,  134  Cal.  430;  Porter  v.  Johnson,  172  Cal. 
456,  457;  May  v.  Sturdivant,  75  Iowa  116. 


SECT.   Ill]  OSTERGARD    V.    NORKER  717 

case  goes  much  farther  than  is  necessary  to  justify  the  court  in 
holding  that  Mrs.  Talhnadge's  possession  was  notice  in  the  case 
under  consideration,  as  the  actual  occupation  of  the  wife  was  only 
of  two  rooms  in  a  tenement  house  containing  forty-three  apartments. 

If  there  be  any  force  at  all  in  the  general  rule  that  the  possession 
of  another  than  the  grantor,  puts  the  purchaser  upon  inquiry  as  to 
the  nature  of  such  possession,  it  applies  with  peculiar  cogency  to  a 
case  like  the  present,  where  the  slightest  inquiry,  either  of  the  hus- 
band or'  wife,  would  have  revealed  the  actual  facts.  Instead  of 
making  such  inquiry,  Kirby  turns  his  back  upon  every  source  of 
information,  does  not  even  enter  the  house,  makes  no  examination 
as  to  whether  the  property  was  in  litigation,  and  buys  it  of  collateral 
heirs  of  Miller,  subject  to  his  Avidow's  dower  if  he  had  had  the  title, 
to  an  unpaid  mortgage,  and  to  the  chances  of  the  property  being 
required  for  the  payment  of  Miller's  debts.  It  is  clear  that  a  pur- 
chase made  under  such  circumstances  does  not  clothe  the  vendee  with 
the  rights  of  a  ho7ia  fide  purchaser  without  notice. 

We  see  no  reason  for  impeaching  the  original  purchase  of  the  land 
by  Mrs.  Tallmadge.  Her  account  of  the  transaction  is  supported 
by  the  testimony  of  all  the  witnesses,  as  well  as  by  the  receipts  and 
other  documentary  evidence.  Her  failure  to  cause  the  deed  to  be 
recorded  is  not  an  unusual  piece  of  carelessness,  nor  is  it  an  infre- 
quent cause  of  litigation.  Under  the  circumstances  of  the  case,  it 
raises  no  presumption'  of  fraud.  What  motives  she  may  have  had 
for  taking  the  title  to  the  property  in  the  name  of  Mr.  Miller  is 
entirely  immaterial  to  the  present  controversy,  although  it  a])pears 
from  her  testimony  that  she  was  possessed  of  money  in  her  own 
right,  and  took  this  method  of  investing  it. 

The  decree  of  the  court  below  is,  therefore,  Ajfirmed. 


OSTERGARD  v.  N'ORKER  et  Al. 
102  Neb.  675.    1918. 

Appeal  from  the  district  court  for  Madison  county:  Axsox  A. 
Welch,  Judge.    A-ffirmed. 

Cornish,  J.  Plaintiff  was  induced  by  fraud  and  wllliout  consider- 
ation to  make  her  deed  of  the  land  in  controversy  to  the  defendant 
Norker.  Soon  afterwards  the  defendant  Norker  deeded  the  land 
to  defendant  Harvey.  At  the  time  of  these  conveyances  the  plain- 
tiff was  in  actual  and  visible  possession  of  the  premises  by  her  tenant. 
She  never  surrendered  the  possession,  nor  consented  that  possession 
be  given  to  either  of  the  defendants.  Harvey,  at  the  time  of  his 
purchase,  made  no  inquiry  of  the  tenant  or  plaintiff  respecting  plain- 
tiff's rights.  This  action  seeks  the  cancelation  of  tliese  conveyances. 
The  trial  court   found    that   defendant   Harvey   i)urclias('d   without 


718  WILLIAMSON    V.    BROWN  [CHAP.   XI 

knowledge  of  tlie  fraud  perpetrated  upon  the  plaintiff;  but  further 
found  that  he  was  not  a  bona  fide  purchaser,  for  the  reason  that  he 
had  constructive  notice  of  plaintiff's  rights  and  interest  in  the  land, 
and  entered  judgment  and  decree  accordingly.  Defendant  Harvej" 
appeals. 

The  inquiry  is  whether  the  possession  of  land  under  such  circum- 
stances is  notice  of  the  title  of  the  possessor  alone,  or  whether  the 
possession  of  the  tenant  is  the  possession  of  the  landlord  and  notice 
of  the  former  is  notice  of  the  latter.  In  a  majority  of  the  American 
cases  the  latter  rule  has  been  adopted  (see  note  to  Garhutt  &  Donovan 
V.  Mayo,  128  Ga.  269,  13  L.  R.  A.  n.  s.  58,  101,  102),  and  has  been 
recognized  by  this  court  {Coulee  v.  McDowell,  15  Neb.  184;  Smith 
V.  Myers,  56  Neb.  503).  It  is  an  equitable  rule  that  possession  of 
property  is  notice  to  the  world  of  w^hatever  rights  the  possessor  has 
in  it.  The  fact  that  the  possession  is  by  a  tenant  under  circumstances 
such  as  in  this  case  should  make  no  difference.  If  Harvey  had 
inquired  of  the  tenant,  he  would  have  learned  that  he  held  as  lessee 
of  another.  Exercising  reasonable  prudence,  he  would  not  have 
stopped  his  inquiry  at  that  point,  but  would  have  inquired  of  the 
landlord  (Mrs.  Ostergard)  and  would  have  learned,  as  he  afterwards 
did  learn,  that  she  was  unwilling  to  surrender  possession  and  claimed 
ownership  of  the  land. 

Defendant  Harvey  in  his  brief  raises  a  question  of  estoppel,  which 
was  neither  pleaded  nor  litigated  in  the  trial  court  and  cannot  be 
considered  here. 

We  are  of  opinion  that  the  judgment  and  decree  of  the  trial  court 
should  be  Affirmed? 

Sedgwick,  J.,  not  sitting. 


WILLIAMSON  V.  BEOWN" 

15  N.  Y.  354.     1857. 

The  defendant,  Brown,  was  the  ownier  of  fifty  acres  of  land  in 
Hannibal,  Oswego  County,  which,  on  the  4tli  of  April,  1851,  he  sold 
and  conveyed  to  one  Jackson  Earl,  taking  back  from  Earl  a  mort- 
gage for  $800  of  the  purchase  money,  but  omitting  at  that  time  to 
put  his  mortgage  upon  record. 

On  the  29th  of  October,  1851,  Earl  coi;veyed  the  land  to  the  plain- 
tiff by  deed,  which  was  duly  recorded  on  the  same  day;  and  on  the 
28th  of  January,  1852,  the  mortgage  from  Earl  to  the  defendant  was 
put  upon  record.  In  May  following  the  defendant  commenced  pro- 
ceedings for  the  foreclosure  of  the  mortgage  by  advertisement.     This 

1  See  Frye  v.  Rose,  120  Miss.  778;  Caplan  v.  Palace  Realty  Co.,  110  Atl. 
(N.  J.)  584;  McClung  Co.  v.  City  Realty  Co.,  108  Atl.  (N.  J.)  767,  111  Atl. 
(N.  J.)  926;  Teljord  v.  Ring,  79  Okla.  92. 


SECT.    Ill]  WILLIAMSON    V.    BROWN  719 

suit  was  commenced  to  restrain  the  defendant  from  proceeding  with 
this  foreclosure,  on  the  ground  that  the  phiintiff  was  protected  by  the 
Kecording  Act  against  the  defendant's  prior  but  unrecorded  mort- 
gage. 

The  cause  was  tried  before  a  referee,  who  reported  that  he  found 
as  matter  of  fact  "  that  the  phiintiff  did  not  at  the  time  he  purchased 
the  premises  have  actual  notice  of  the  existence  of  the  mortgage 
mentioned  in  the  pleadings,  given  by  Jackson  Earl  to  the  defendant," 
but  also  found  that  he  had  "  sufficient  information,  or  belief  of  the 
existence  of  said  mortgage  to  put  him  upon  inquiry,  before  he  pur- 
chased and  received  his  conveyance  of  the  premises  in  question;  and 
that  he  pursued  such  inquiry  to  the  extent  of  his  information  and 
belief,  as  to  the  existence  of  the  said  mortgage,  and  did  not  find  that 
such  mortgage  existed,  or  had  been  given." 

Upon  these  facts  the  referee  held  that  the  plaintiff  was  chargeable 
v.-ith  notice  of  the  mortgage,  and  dismissed  the  complaint,  and  the 
plaintiff  excepted  to  the  decision.  Judgment  Avas  entered  for  the  de- 
fendant upon  the  referee's  report,  which  upon  appeal  to  the  General 
Term  of  the  Fifth  District,  was  affirmed. 

SELDE>r,  J.  The  referee's  report  is  conclusive  as  to  the  facts.  It 
states,  in  substance,  that  the  plaintiff  had  sufficient  information  to 
put  him  upon  inquiry  as  to  the  defendant's  mortgage;  but  that 
after  making  all  the  inquiry,  which  upon  such  infornuition  it  became 
his  duty  to  make,  he  failed  to  discover  that  any  such  mortgage  ex- 
isted. This  being,  as  I  think,  Avhat  the  referee  intended  to  state, 
is  to  be  assumed  as  the  true  interpretation  of  his  report. 

The  question  in  the  case,  therefore,  is  as  to  the  nature  and  effect 
of  that  kind  of  notice  so  frequently  mentioned  as  notice  sufficient  to 
put  a  party  upon  inquiry.  The  counsel  for  the  plaintiff  contends 
that  Avhile  such  a  notice  may  be  all  that  is  required  in  some  cases 
of  equitable  cognizance,  it  is  not  sufficient  in  cases  arising  under  the 
Registry  Acts,  to  charge  the  party  claiming  nnder  a  recorded  title 
with  knowledge  of  a  prior  unregistered  conveyance.  He  cites  several 
authorities  in  support  of  this  position. 

In  the  case  of  Dei/  v.  Dunham,  2  John.  Ch.  R.  182,  Chancellor 
Kent  says,  in  regard  to  notice  under  the  Registr}''  Act :  "  If  notice 
that  is  to  put  a  party  upon  inquiry  be  sufficient  to  break  in  upon 
the  policy  and  the  express  provisions  of  the  Act,  then  indeed,  the 
conclusion  would  be  different;  but  I  do  not  apprehend  that  the  de- 
cisions go  that  length."  Again,  in  his  Commentaries,  speaking  on 
the  same  subject,  he  says:  "  Implied  notice  may  be  equally  effectual 
with  direct  and  positive  notice;  but  then  it  must  not  be  that  notice 
which  is  barely  sufficient  to  put  a  party  upon  inquiry." 

So  in  Jacl-son  v.  Van  Valhenhurg,  8  Cow.  260,  "Woodworth,  J., 
says :  "  If  these  rules  be  applied  to  the  present  case,  the  notice  was 
defective.  It  may  have  answered  to  put  a  person  on  inquiry,  in  a 
case  where  that  species  of  notice  is  sufficient;  but  we  have  seen  that 
to  supply  the  place  of  registry,  the  law  proceeds  a  step  further." 


720  WILLIAMSON    V.    BROWN  [CHAP.   XI 

A  reference  to  some  of  the  earlier  decisions  under  the  Registry 
Acts  of  England  will  tend,  1  think,  to  explain  these  remarks,  which 
were  probably  suggested  by  those  decisions.  One  of  the  earliest,  if 
not  the  first  of  the  English  llecording  Acts  was  that  of  7  Anne,  ch. 
20.  That  Act  differed  from  our  General  Registry  Act  in  one  impor- 
tant respect.  It  did  not,  in  terms  require,  that  the  party  to  be  pro- 
tected by  the  Act  should  be  a  bona  fide  purchaser.  Its  language  was : 
''And  that  every  such  deed  or  conveyance,  that  shall  at  any  time 
after,  «fec.,  be  made  and  executed,  shall  be  adjudged  fraudulent  and 
void,  against  any  subsequent  purchaser  or  mortgagee  for  valuable 
consideration,  unless,"  (S:c. 

The  English  judges  found  some  difficulty  at  first  in  allowing  any 
equity,  however  strong,  to  control  the  explicit  terms  of  the  Statute. 
It  was  soon  seen,  however,  that  adhering  to  the  strict  letter  of  the  Act 
would  open  the  door  to  the  grossest  frauds.  Courts  of  equity,  there- 
fore, began,  but  with  great  caution,  to  give  relief  when  the  fraud 
Avas  palpable.  Hine  v.  Dodd,  2  Atk.  275,  was  a  case  in  which  the 
complainant  sought  relief  against  a  mortgage  having  a  preference 
under  the  Registry  Act,  on  the  ground  that  the  mortgagee  had  notice. 
Lord  Hardwicke  dismissed  the  bill,  but  admitted  that  "  apparent 
fraud,  or  clear  and  undoubted  notice  would  be  a  proper  ground  of 
relief."  Again  he  said :  "  There  may  possibly  have  been  cases  of 
relief  upon  notice,  divested  of  fraud,  but  then  the  jjroof  must  be 
extremely  clear." 

Jolland  V.  Stainhridge,  3  Ves.  478,  is  another  case  in  Avhicli  relief 
was  denied.  The  Master  of  the  Rolls,  however,  there  says :  "  I  must 
admit  now  that  the  registry  is  not  conclusive  evidence,  but  it  is 
equally  clear  that  it  must  be  satisfactorily  proved,  that  the  person 
Avho  registers  the  subsequent  deed  must  have  known  exactly  the 
situation  of  the  persons  having  the  prior  deed,  and  knowing  that, 
registered  in  order  to  defraud  them  of  that  title." 

Chancellor  Kent  refers  to  these  cases  in  Dey  y.  Dunham  (supra), 
and  his  remarks  in  that  case,  as  to  the  effect,  under  the  Registry 
Acts,  of  notice  sufficient  to  put  a  party  upon  inquiry,  were  evidently 
made  under  the  influence  of  the  language  of  Lord  Hardwicke  and 
the  Master  of  the  Rolls  above  quoted. 

But  the  English  courts  have  since  seen,  that  if  they  recognized 
any  equity  founded  upon  notice  to  the  subsequent  purchaser  of  the 
l^rior  unregistered  conveyance,  it  became  necessarily  a  mere  ques- 
tion of  good  faith  on  the  part  of  such  purchaser.  They  now  apply, 
therefore,  the  same  rules  in  regard  to  notice,  to  cases  arising  under 
the  Registry  Acts,  as  to  all  other  cases. 

It  will  be  sufficient  to  refer  to  one  only  among  the  modern  English 
cases  on  this  subject,  viz.,  Whitbread  v.  Boulnois,  1  You.  &  Coll. 
Ex.  R.  303.  The  plaintiff  Avas  a  London  brewer,  and  supplied 
Jordan,  who  was  a  publican,  with  beer.  It  was  the  common  prac- 
tice with  brewers  in  London  to  lend  money  to  publicans  whom  they 


SECT.    Ill]  WILLIAMSON    V.    BROWN  721 

supplied  witli  beer,  upon  a  deposit  of  their  title  deeds.  Jordan 
had  deposited  certain  deeds  with  the  plaintiff,  pursuant  to  this 
custom.  He  afterwards  gave  to  one  Boulnois,  a  wine  merchant,  a 
mortgage  upon  the  property  covered  by  the  deeds  deposited,  which 
was  duly  recorded.  Boulnois  had  notice  of  Jordan's  debt  to  the 
jjlaintiflF,  and  of  the  existing  custom  between  brewers  and  publicans, 
but  he  made  no  inquiry  of  the  brewers.  The  suit  was  brought  to 
enforce  the  equitable  mortgage  arising  from  the  deposit.  Baron 
Alderson  held  that  the  notice  to  Boulnois  Avas  sufficient  to  make  it 
his  duty  to  inquire  as  to  the  existence  of  the  deposit;  that  his  not 
doing  so  was  evidence  of  bad  faith;  and  the  plaintiff's  right,  under 
his  equitable  mortgage,  was  sustained.  No  case  could  show  more 
strongly  that  notice  which  puts  the  party  upon  inquiry  is  sufficient 
even  under  the  Registry  Act. 

The  cases  in  our  own  courts,  since  Dajj  v.  DiiitJiam  and  Jarlson  v. 
Van  Valkenburgh  (fiupra),  hold  substantially  the  same  doctrine. 
Tuttle  \.  Jackson,  6  Wend.  213;  Jackson  v.  Post,  15  Wend.  588; 
Grimstone  v.  Carter,  3  Paige  421. 

I  can  see  no  foundation  in  reason  for  a  distinction  between  the 
evidence  requisite  to  establish  a  want  of  good  faith,  in  a  case  arising 
under  the  Recording  Act,  and  in  any  other  case;  and  the  authorities 
here  referred  to  are  sufficient  to  show  that  no  such  distinction  is 
recognized,  at  the  present  day,  by  the  courts.  The  question,  however, 
remains,  whether  this  species  of  notice  is  absolutely  conclusive  upon 
the  rights  of  the  parties.  The  plaintiff's  counsel  contends,  that 
knowledge  sufficient  to  put  the  purchaser  upon  inquiry  is  only  pre- 
sumptive evidence  of  actual  notice,  and  may  be  repelled  by  showing 
that  the  party  did  inquire  with  reasonable  diligence,  but  failed  to 
ascertain  the  existence  of  the  unregistered  conveyance;  while,  on 
the  other  hand,  it  is  insisted  that  notice  which  makes  it  the  duty  of 
the  party  to  inquire,  amounts  to  constructive  notice  of  the  prior 
conveyance,  the  law  presuming  that  due  incpiiry  will  necessarily  lead 
to  its  discovery. 

The  counsel  for  the  defendant  cites  several  authorities  in  support 
of  his  position,  and  among  others  the  cases  of  TntfJe  v.  Jackson  and 
Grim.slone  v.  Carter  (supra).  In  the  first  of  these  cases,  Walworth, 
Chancellor,  says :  "  If  the  subsequent  purchaser  knows  of  the  un- 
registered conveyance,  at  the  time  of  his  purchase,  he  cannot  pro- 
tect himself  against  that  conveyance;  and  whatever  is  sufficient  to 
make  it  his  duty  to  inquire  as  to  the  rights  of  others,  is  considered 
legal  notice  to  him  of  those  rights;"  and  in  Grimstone  v.  Carter, 
the  same  judge  says:  "And  if  the  person  claiming  the  prior  equity 
is  in  the  actual  possession  of  the  estate,  and  the  purchaser  has  notice 
of  that  fact,  it  is  sufficient  to  put  him  on  inquiry  as  to  the  actual 
rights  of  snch  ]iossessor,  and  is  good  constrnctive  notice  of  those 
rights." 

It  must  be  conceded  that  the  language  used  by  the  learned  Chan- 


722  WILLIAMSON    V.    BROWN  [CHAP.   XI 

ecllor  in  these  cases,  if  strictly  accurate,  would  go  to  sustain  the 
doctrine  contended  for  by  the  defendant's  counsel.  Notice  is  of 
two  kinds :  actual  and  constructi^'^e.  Actual  notice  embraces  all 
degrees  and  grades  of  evidence,  from  the  most  direct  and  positive 
proof  to  the  slightest  circumstance  from  which  a  jury  would  be 
warranted  in  inferring  notice.  It  is  a  mere  question  of  fact,  and  is 
open  to  every  species  of  legitimate  evidence  which  may  tend  to 
strengthen  or  impair  the  conclusion.  Constructive  notice,  on  the 
other  hand,  is  a  legal  inference  from  established  facts;  and  like 
other  legal  presumptions,  does  not  admit  of  dispute.  "  Construc- 
tive notice,"  says  Judge  Story,  "  is  in  its  nature  no  more  than  evi- 
dence of  notice,  the  presumption  of  which  is  so  violent  that  the 
court  will  not  even  allow  of  its  being  controverted."  Story's  Eq. 
Juris.  §  399. 

A  recorded  deed  is  an  instance  of  constructive  notice.  It  is  of  no 
consequence  whether  the  second  purchaser  has  actual  notice  of  the 
prior  deed  or  not.  He  is  bound  to  take,  and  is  presumed  to*  have, 
the  requisite  notice.  So,  too,  notice  to  an  agent  is  constructive  notice 
to  the  principal;  and  it  would  not  in  the  least  avail  the  latter  to 
show  that  the  agent  had  neglected  to  communicate  the  fact.  In  such 
cases,  the  law  imputes  notice  to  the  party  whether  he  has  it  or  not. 
Legal  or  implied  notice,  therefore,  is  the  same  as  constructive  notice, 
and  cannot  be  controverted  by  proof. 

But  it  will  be  found,  on  looking  into  the  cases,  that  there  is  much 
want  of  precision  in  the  use  of  these  terms.  They  have  been  not 
unfrequently  applied  to  degrees  of  evidence  barely  sufficient  to  war- 
rant a  jury  in  inferring  actual  notice,  and  which  the  slightest  oppos-- 
ing  proof  would  repel,  instead  of  being  confined  to  those  legal  pre- 
sumptions of  notice  which  no  proof  can  overthrow.  The  use  of 
these  terms  by  the  Chancellor,  therefore,  in  Tuttle  v.  Jachsoti  and 
Grirastone  v.  Carter,  is  by  no  means  conclusive. 

The  phraseology  uniformly  used,  as  descriptive  of  the  kind  of 
notice  in  question,  "  sufficient  to  put  the  party  upon  inquiry,"  would 
seem  to  imply  that  if  the  party  is  faithful  in  making  inquiries,  but 
fails  to  discover  the  conveyance,  he  will  be  protected.  The  import 
of  the  terms  is,  that  it  becomes  the  duty  of  the  party  to  inquire.  If, 
then,  he  performs  that  duty  is  he  still  to  be  bound,  without  any  actual 
notice?  The  presumption  of  notice  which  arises  from  proof  of  that 
degree  of  knowledge  which  will  put  a  party  upon  inquiry  is,  I 
apprehend,  not  a  presumption  of  law,  but  of  fact,  and  may,  there- 
fore, be  controverted  by  evidence. 

In  Whithread  v.  Boulnois  (supra),  Baron  Alderson  laid  down  the 
rule  as  follows :  "  "When  a  party  having  knowledge  of  such  facts  as 
would  lead  any  honest  man,  using  ordinary  caution,  to  make  further 
inquiries,  does  not  make,  but  on  the  contrary  studiously  avoids 
maki;ig,  such  obvious  inquiries,  he  must  be  taken  to  have  notice  of 
those  facts,  which,  if  he  had  used  such  ordinary  diligence,  he  would 


SECT.    Ill]  WILLIAMSON    V.    BROWN  723 

readily  have  ascertained."  This  very  plainly  implies  that  proof 
that  the  party  has  used  due  diligence,  but  without  effect,  would  repel 
the  presumption.  In  this  case,  it  is  true,  the  decision  was  against 
the  party  having  the  notice.  But  in  Jones  v.  Smith,  1  Hare,  43,  we 
have  a  case  in  which  a  party,  who  had  knowledge  sufficient  to  put 
him  on  inquiry,  was  nevertheless  held  not  bound  by  the  notice. 

The  defendant  had  loaned  money  upon  the  security  of  the  estate  of 
David  Jones,  the  father  of  the  plaintiff.  At  the  time  of  the  loan  he 
was  informed,  by  David  Jones  and  his  wife,  that  a  settlement  w^as 
made  previous  to  the  marriage,  but  was  at  the  same  time  assured 
that  it  only  affected  the  property  of  the  wife.  He  insisted  upon 
seeing  the  settlement,  but  was  told  that  it  was  in  the  hands  of  a  rela- 
tive, and  that  it  could  not  be  seen  without  giving  offence  to  an  aged 
aunt  of  the  wife,  from  whom  they  had  expectations.  David  Jones, 
however,  after  some  further  conversation,  promised  that  he  would  try 
to  procure  it  for  exhibition  to  the  defendant.  This  promise  he 
failed  to  perform.  It  turned  out  that  the  settlement  included  the 
lands  upon  which  the  money  was  loaned.  Here  was  certainly  knowl- 
edge enough  to  put  the  party  upon  inquiry;  for  he  was  apprised  of 
the  existence  of  the  very  document  which  was  the  foundation  of  the 
complainant's  claim.  He  did  inquire,  however,  and  made  every  rea- 
sonable effort  to  see  the  settlement  itself,  but  was  baffled  by  the 
plausible  pretences  of  David  Jon(»s.  The  Vice-Chancellor  held  the 
notice  insufficient.  He  said :  "  The  affairs  of  mankind  cannot  be 
carried  on  with  ordinary  security,  if  a  doctrine  like  that  of  con- 
structive notice  is  to  be  refined  upon  until  it  is  extended  to  cases 
like  the  present." 

Possession  by  a  third  person,  under  some  previous  title,  has  fre- 
quently but  inaccurately  been  said  to  amount  to  constructive  notice 
to  a  purchaser,  of  the  nature  and  extent  of  such  prior  right.  Such  a 
possession  puts  the  purchaser  upon  inquiry,  and  makes  it  his  duty 
to  pursue  his  inquiries  wnth  diligence,  but  is  not  absolutely  conclu- 
sive upon  him.  In  Ilamhury  v.  Litchfield,  2  Myl.  &  Keene  629, 
when  the  question  arose,  the  Master  of  the  Rolls  said :  "  It  is  true 
that  when  a  tenant  is  in  possession  of  tlie  premises,  a  purchaser  has 
implied  notice  of  the  nature  of  his  title;  but  if,  at  the  time  of  his 
purchase,  the  tenant  in  possession  is  not  the  original  lessee,  but 
merely  holds  under  a  derivative  lease,  and  has  no  knowledge  of  the 
covenants  contained  in  the  original  lease,  it  has  never  been  con- 
sidered that  it  was  want  of  due  diligence  in  tlic  ])nrchaser,  which  is 
to  fix  him  with  implied  notice,  if  he  does  not  pursue  his  inquiries 
through  every  derivative  lessee  until  he  arrives  at  the  person  entitled 
to  the  original  lease,  which  can  alone  convey  to  him  information  of 
the  covenants." 

This  doctrine  is  confirmed  by  the  language  of  Judge  Story,  in 
FJagg  v.  Mann  ct  ah.  2  Sumner,  '^'A.  He  says:  "I  admit  that  the 
rule  in  equity  seems  to  be,  that  where  a  tenant  or  other  person  is 


724  WILLIAMSON    V.    BROWN  [CHAP.   XI 

in  possession  of  the  estate  at  the  time  of  the  purchase,  the  purchaser 
is  put  upon  inquiry  as  to  the  title;  and  if  he  does  not  inquire,  he  is 
bound  in  the  same  manner  as  if  he  had  inquired,  and  had  positive 
notice  of  the  title  of  the  party  in  possession." 

It  is  still  further  confirmed  by  the  case  of  Rogers  v.  Jones,  8  ^N". 
Hamp.  264.  The  language  of  Parker,  J.,  in  that  case,  is  very  em- 
phatic. He  says:  "To  say  that  he  (the  purchaser)  was  put  upon 
inquiry,  and  that  having  made,  all  due  investigation,  without  obtain- 
ing any  knowledge  of  title,  he  was  still  chargeable  with  notice  of  a 
deed,  if  one  did  really  exist,  would  be  absurd." 

If  these  authorities  are  to  be  relied  upon,  and  I  see  no  reason  to 
doubt  their  correctness,  the  true  doctrine  on  this  subject  is,  that 
where  a  purchaser  has  knowledge  of  any  fact,  sufficient  to  put  him 
on  inquiry  as  to  the  existence  of  some  right  or  title  in  conflict  with 
that  he  is  about  to  purchase,  he  is  presumed  either  to  have  made 
the  inquiry,  and  ascertained  the  extent  of  such  prior  right,  or  to  have 
been  gviilty  of  a  degree  of  negligence  equally  fatal  to  his  claim  to 
be  considered  as  a  bona  fide  purchaser.  This  presumption,  however, 
is  a  mere  inference  of  fact,  and  may  be  repelled  by  proof  that  the 
purchaser  failed  to  discQver  the  prior  right,  notwithstanding  the 
exercise  of  proper  diligence  on  his  part. 

The  judgment  should  be  reversed,  and  there  should  be  a  new  trial, 
with  costs,  to  abide  the  event. 

Paige,  J.  The  question  to  be  decided  is,  whether  under  the  finding 
of  the  referee,  the  plaintiff  is  to  be  deemed  to  have  had  at  the  time  of 
his  purchase,  legal  notice  of  the  prior  unrecorded  mortgage  of  the 
defendant.  The  referee  finds  that  the  plaintiff  had  sufficient  infor- 
mation or  belief  of  the  existence  of  such  mortgage  to  put  him  upon 
inquiry;  but  that  upon  pursuing  such  inquiry  to  the  extent  of  such 
information  and  belief,  he  did  not  find  that  such  mortgage  existed 
or  had  been  given.  It  seems  to  me  that  the  two  findings  are  incon- 
sistent with  each  other.  If  the  plaintiff  on  pursuing  an  inquiry  to 
the  full  extent  of  his  information  and  belief  as  to  the  existence  of 
the  defendant's  mortgage,  was  unable  to  find  that  it  either  then 
existed  or  had  been  given,  the  highest  evidence  is  furnished  that  the 
information  received  or  belief  entertained  by  the  plaintiff  was  not 
sufficient  to  put  him  on  inquiry  as  to  the  existence  of  such  mort- 
gage. The  last  part  of  this  finding  effectually  disproves  the  fact  pre- 
viously found  of  the  sufficiency  of  notice  to  put  the  plaintiff  on  in- 
quiry. The  two  facts  are  utterly  inconsistent  with  each  other,  and 
cannot  possibly  coexist. 

The  remarks  of  Parker,  Justice,  in  Rogers  v.  Jones,  8  N.  Hamp. 
264,  269,  are  directly  apposite  to  the  facts  found  by  the  referee. 
Judge  Parker  says:  "To  say  that  he  (demandant),  was  put  upon 
inquiry,  and  that  having  made  all  due  investigation  without  obtain- 
ing any  knowledge  of  title,  ke  was  still  chargeable  with  notice  of  a 
deed,  if  one  did  really  exist,  would  be  absurd."     The  sound  sense  of 


SECT.    Ill]  WILLIAMSON    V.   BROWN  725 

these  observations  is  clearly  shown  by  the  ])rineiple  of  the  rule  that 
information  sufficient  to  put  a  party  upon  inquiry  is  equivalent  to 
evidence  of  actual  notice,  or  to  direct  and  positive  notice.  That 
principle  is,  that  such  information  will,  if  followed  by  an  inquiry 
prosecuted  with  due  diligence,  lead  to  a  knowledge  of  the  fact  with 
notice  of  which  the  party  is  sought  to  be  charged.  Hence,  in  all  cases 
where  the  question  of  implied  notice  of  a  prior  unrecorded  mortgage 
or  conveyance  arises  as  a  question  of  fact  to  be  determined,  the  court 
must  decide  whether  the  information  possessed  by  the  party  would, 
if  it  had  been  followed  up  by  proper  examination,  have  led  to  a 
discovery  of  such  mortgage  or  conveyance.  If  the  determination  is 
that  such  an  examination  would  have  resulted  in  a  discovery  of  the 
mortgage  or  conveyance,  the  conclusion  of  law  necessarily  results  that 
the  information  possessed  by  the  party  amounted  to  implied  notice  of 
such  instrument.  But  if  the  determination  is  the  converse  of  the 
one  stated,  the  information  of  the  party  cannot  be  held  to  be  an 
implied  notice  of  the  deed  or  mortgage.  These  propositions  Avill  be 
found  to  be  fully  sustained  by  authority.  Kennedy  v.  Green,  3  Myl. 
&  Keene,  699;  2  Sugden  on  Vendors,  &c.,  552,  Am.  ed.  of  1851, 
marg.  page  1052;  4  Kent's  Com.  172;  Howard  Ins.  Co.  v.  Hahey, 
4  Sandf.  S.  C.  R.  577,  578;  same  case,  4  Seld.  274,  275;  1  Story's  Eq. 
Jur.  §§  398-400,  400  a;  Jachson  v.  Burgott,  10  John.  461 ;  Dunham  v. 
Dey,  15  John.  568,  569,  in  error;  Jackson  v.  Given,  8  John.  137; 
JoUand  v.  Stainhridge,  3  Ves.  478;  Pendleton  v.  Fay,  2  Paige,  205. 
Where  the  information  is  sufficient  to  lead  a  party  to  a  knowledge 
of  a  prior  unrecorded  conveyance,  a  neglect  to  make  the  necessary 
inquiry  to  acquire  such  knowledge,  will  not  excuse  him,  but  he  will 
be  chargeable  with  a  knowledge  of  its  existence;  the  rule  being  that 
a  party  in  possession  of  certain  information  will  be  chargeable  wuth 
a  knowledge  of  all  facts  which  an  inquiry,  suggested  by  such  infor- 
mation, prosecuted  with  due  diligence,  would  have  disclosed  to  him. 
4  Sandf.  S.  C.  R.  578;  3  Myl.  &  Keene,  699.  In  this  case  the  fact 
being  found  by  the  referee,  that  the  plaintiff  after  pursuing  an  in- 
quiry to  the  extent  of  his  information,  failed  to  discover  the  existence 
of  the  defendant's  mortgage,  it  seems  to  me  that  neither  law  nor 
justice  will  justify  us  in  holding  the  plaintiff  chargeable  with  implied 
notice  of  such  mortgage.  The  doctrine  of  notice  and  its  operation 
in  favor  of  a  prior  unrecorded  deed  or  mortgage  rests  upon  a  question 
of  fraud,  and  on  the  evidence  necessary  to  infer  it.  4  Kent's  Com. 
172.  Actual  notice  aifects  the  conscience,  and  convicts  the  junior 
purchaser  of  a  fraudulent  intent  to  defeat  the  prior  conveyance.  His 
knowledge  of  facts  and  circumstances  at  the  time  of  the  second 
purchase  sufficient  to  enable  him  on  due  inquiry  to  discover  the 
existence  of  the  prior  conveyance,  is  evidence  from  which  a  fraudulent 
intent  may  be  inferred.  15  John.  569;  2  John.  Ch.  R.  190;  Jachson 
V.  Burqohf,  10  John.  462.  Now  if  it  is  ascertained  and  found  as  a 
fact,  -hat  the  facts  and  circumstances  within  the  knowledge  of  the 


726  GEORGE    V.    KENT  [CHAP.   XI 

second  purchaser,  at  the  time  of  his  purchase,  were  insufficient  to 
lead  him,  on  a  diligent  examination,  to  a  discovery  of  the  prior  con- 
veyance, how  upon  this  finding  can  a  fraudulent  intent  be  inferred, 
and  if  not,  how  can  he  be  charged  with  notice,  which  implies  a  fraudu- 
lent intent?  It  is  not  in  the  nature  of  things,  that  a  knowledge  of 
the  same  facts  and  circumstances,  shall  at  one  and  the  same  time,  be 
held  evidence  of  both  innocence  and  guilt.  I  think  the  rule  well 
established  that  an  inference  of  a  fraudulent  intent  on  the  part  of  a 
junior  purchaser  or  mortgagee,  must  in  the  absence  of  actual  notice, 
be  founded  on  clear  and  strong  circumstances,  and  that  such  infer- 
ence must  be  necessary  and  unquestionable.  McMechan  v.  Griffing, 
3  Pick.  149,  154,  155;  Hine  v.  Dodd,  2  Atk.  275;  Jackson  v.  Given, 
8  John.  137;  2  Mass.  509;  2  John.  Ch.  E.  189;  15  John.  S.  C.  569; 
8  Cow.  264,  266. 

For  the  above  reasons,  both  the  judgment  rendered  on  the  report 
of  the  referee,  and  the  judgment  of  the  General  Term  affirming  the 
same,  should  be  reversed,  and  a  new  trial  should  be  granted. 

All  the  judges  concurred  in  the  result  of  the  foregoing  opinions 
except  CoMSTOCK  and  Brown,  who,  not  having  heard  the  argument, 
took  no  part  in  the  decision.  New  trial  ordered. 


GEORGE  V.  KENT  and  Others 

7  All.  (Mass.)  16.     1863. 

Bill  in  equity  to  redeem  land  from  a  mortgage. 

It  appeared  at  the  hearing  that  on  the  7th  of  May,  1850,  Nathaniel 
Chessman,  being  the  owner  of  a  parcel  of  land  on  the  south  side  of 
Water  Street  in  Milford,  containing  about  three  acres,  mortgaged  it 
to  Maxcy  Cook;  that  afterwards,  on  the  1st  of  July,  1853,  he  con- 
veyed a  small  lot  on  the  easterly  part  thereof  to  Hugh  Galliher,  by  a 
deed  of  warranty  which  was  duly  recorded;  that  afterwards,  on  the 
5th  of  June,  1854,  he  conveyed  a  small  lot  on  the  westerly  part 
thereof  to  Patrick  Murphy,  by  a  deed  of  warranty  which  was  not 
recorded;  and  that  afterwards,  on  the  2d  of  November,  1854,  he  con- 
veyed another  small  lot,  lying  between  the  lots  conveyed  to  Galliher 
and  Murphy,  to  the  plaintiff,  by  a  deed  of  mortgage  which  was 
duly  recorded,  containing  the  following  description  of  the  mort- 
gaged premises :  "  Beginning  at  the  northeasterly  corner  of  the 
premises,  on  Water  Street,  on  the  land  of  Hugh  Galliher;  thence 
S.  2°  W.  by  land  of  said  Galliher  eight  rods;  thence  S.  871/4°  W. 
five  and  one  half  rods  to  land  of  Patrick  Murphy,  bounding  south- 
erly on  land  of  N.  Chessman;  thence  N.  2°  E.  eight  rods  to  said 
street,  bounding  westerly  on  land  of  said  Murphy;  thence  easterly  by 
said  street  five  and  one  half  rods  to  the  place  of  beginning."  The 
mortgage  to  Maxcy  Cook  was  assigned  to  the  defendants  in  February, 
1861;  and  in  May,  1861,  they  commenced  an  action  against  the 
plaintiff  to  foreclose  it,  describing  in  their  writ  the  lot  conveyed  to 


SECT.    Ill]  GEORGE    V.    KENT  727 

the  plaintiff,  and  no  more,  and  obtained  a  conditional  judgment  in 
February,  1862,  for  the  sum  of  $1,679.15.  In  April,  1861,  the  lot 
conveyed  to  Murphy  became  vested  in  the  defendant  Kent  by  mesne 
conveyances. 

The  plaintiff  contended  that  the  Murphy  lot  should  be  held  to 
contribute,  in  proportion  to  its  value,  towards  the  redemption  of 
the  Cook  mortgage;  and  the  case  was  reserved  by  Chapman,  J.,  for 
the  determination  of  the  whole  court. 

Chapman,  J.  It  is  not  denied  that  the  plaintiff  has  a  right  to 
redeem  on  payment  of  the  amount  for  which  conditional  judgment 
was  rendered;  but  he  claims  the  right  on  payment  of  a  less  sum. 
He  insists  that  as  his  deed  was  a  deed  of  warranty,  and  was  made 
and  recorded,  while  the  deed  to  Murphy  was  unrecorded,  he  has  a 
right  to  hold  the  Murphy  lot  liable  to  contribute  to  the  payment 
of  the  Cook  mortgage.  This  position  would  be  correct  if  there  were 
no  other  facts  to  affect  it.  But  the  defendants  reply  that  he  had 
notice  of  the  deed  to  Murphy.  The  fact  relied  on  to  prove  such 
notice  is,  that  Murphy's  lot  adjoins  him  on  the  west,  and  in  his 
deed  he  is  bounded  westerly  on  land  of  Patrick  ]Murphy.  The  court 
are  of  opinion  that  this  was  sufHcient  notice  of  Murphy's  title.  Be- 
fore the  enactment  of  Rev.  Sts.  c.  59,  §  28,  actual  notice  of  an  unre- 
corded deed  was  not  necessary;  and  circumstantial  evidence  of  title 
was  held  to  be  sufficient.  But  the  Rev.  Sts.  made  a  change  in  this 
respect,  and  required  that  there  should  be  actual  notice.  Curtis  v. 
Mundy,  3  Met.  405.  Pomroy  v.  Stevens,  11  Met.  244.  Mara  v. 
Pierce,  9  Gray  306.  Parker  v.  Osgood,  3  Allen  487.  The  case  of 
Curtis  V.  Mundy  is,  to  some  extent,  overruled  by  the  later  cases; 
yet  none  of  them  hold  it  to  be  necessary  that  the  notice  shall  be 
by  actual  exhibition  of  the  deed.  Intelligible  information  of  a  fact, 
either  verbally  or  in  writing  and  coming  from  a  source  which  a 
party  ought  to  give  heed  to,  is  generally  considered  as  notice  of  it, 
except  in  cases  where  particular  forms  are  necessary.  In  this  case 
no  particular  form  is  necessary.  The  description  of  the  land  in  the 
plaintiff's  deed  was  equivalent  to  an  affirmation  of  his  grantor  that 
the  land  lying  west  of  it  was  owned  by  Patrick  Murphy,  by  virtue  of 
some  proper  instrument  of  conveyance.  He  knew  from  this  informa- 
tion that  Murphy's  title  was  prior  to  his  own.  Having  such  a  title, 
and  the  plaintiff  having  notice  of  it.  Murphy  and  his  grantees  are 
not  liable  to  contribute  towards  the  redemption  of  the  Cook  mort- 
gage. Chase  v.  Woodhury,  6  Cush.  143.  Bradley  v.  George,  % 
Allen  392. 

The  plaintiff  is  entitled  to  redeem  on  payment  of  the  amount  of 
the  conditional  judgment  against  him,  witli  interest,  deducting  rents 
and  profits  received.^ 

1  Compare  Stanley  v.  Schwalhy,  162  U.  S.  255;  Logger  v.  Mutual  Union 
Loan  Assn.,  146  III.  283;  Charles  v.  Whitt,  187  Ky.  77! 

As  to  what  may  amount  to  "  actual  "  notice,  see  Lamb  v.  Pierre,  113  Mass. 
72;  Maupin  v.  Emmons,  47  Mo.  304;  Brink tnan  v.  Jones,  44  Wis.  498,  517 
ct  seq. 


728  NEWMAN    V.    CHAPMAN  [CHAP.   XI 

NEWMAN  V.  CHAPMAN 
2  Rand.  (Va.)  93.     1823. 

Appeal  from  the  Chancery  Court  of  Fredericksburg. 

George  Chapman,  jun.,  filed  liis  bill  stating  that  a  certain  John 
Armistead  of  the  County  of  Caroline,  died  in  1788,  leaving  a  large 
estate  in  lands,  negroes,  and  other  property,  wlr'ch  he  devised  to  his 
children :  that,  his  son  William  Armistead  received  the  portion  allotted 
to  him,  and  gave  a  mortgage  upon  his  land;  which  mortgage  w^as 
afterwards  assigned  to  a  certain  Jesse  Simms :  that  the  said  Simms 
brought  a  suit  in  the  Chancery  Court  of  Eichmond,  to  foreclose  the 
said  mortgage,  and  obtained  a  decree,  by  virtue  of  which  the  land 
was  duly  sold ;  the  said  Simms  became  the  purchaser,  and  the  court 
confirmed  the  sale;  whereby,  he  became  the  lawful  proprietor  in  fee, 
of  the  said  land  and  appurtenances,  so  far  as  the  title  of  the  said 
William  Armistead  was  concerned;  and  the  said  Simms  was  en- 
titled to  be  put  in  possession  of  the  same,  subject  only  to  the  claims 
of  such  persons  as  should  have  right  derived  from  any  other  person 
than  the  said  William,  or  derived  from  him  prior  to  the  said  mort- 
gage or  suit  in  chancery  to  foreclose,  as  aforesaid :  that  the  sale 
and  conveyance  of  the  commissioners  was  made  on  the  13th  of  July, 
1804,  and  on  the  13th  of  August  in  the  same  year  the  said  Jesse 
Simms  conveyed  the  said  tract  of  land  with  its  appurtenances  to 
the  complainant,  in  consideration  of  $11,400,  which  the  complainant 
had  previously  paid  to  the  said  Jesse  Simms,  he  not  supposing  that 
any  dispute  could  be  raised  concerning  a  title,  acquired  and  con- 
firmed by  the  authority  of  the  Court  of  Chancery;  to  which  he  is 
now  obliged  to  apply  for  its  further  aid  to  effectuate  its  own  decree: 
that  a  part  of  the  said  land,  viz. :  about  593  acres,  is  in  possession 
of  Thomas  Newman;  another  part  consisting  of  about  acres 

is  in  possession  of  Eichard  Newman;  and  the  residue  is  still  in  pos- 
session of  the  said  William  Armistead :  that,  Thomas  and  Eichard 
Newman  have  no  other  title  or  claim  to  the  said  land,  except  that 
derived  from  the  said  William  Armistead,  subsequent  to  the  institu- 
tion of  the  said  suit  of  Jesse  Simms,  and  while  it  was  pending  in  the 
said  Superior  Court  of  Chancery:  that  the  said  William  Armistead 
has  been  in  the  receipt  of  the  profits  of  the  lands  in  his  possession, 
by  which  he  has  principally  maintained  his  family,  and  has  ren- 
dered no  account  thereof  to  the  complainant :  that  the  rents  and 
profits  of  the  portions  of  land  in  possession  of  the  said  Thomas  and 
Eichard  Newman,  have  been  received  by  them,  in  like  manner,  and 
no  account  rendered  to  the  complainant :  that  all  these  persons  re- 
fuse to  deliver  possession  to  the  complainant  of  the  said  lands,  and 
also  refuse  to  account  for  the  profits,  according  to  their  respective 
receipts  and  enjoyments:  that  no  writ  of  habere  facias  possessionem 
was  issued  from  the  said  Superior  Court,  and  the  said  Jesse  Simms 


SECT.    Ill]  NEWMAN    V.    CHAPMAN  729 

is  dead,  insolvent,  and  has  no  representative  known  to  the  com- 
plainant: that,  in  a  case  so  complicated,  the  complainant  is  ad- 
vised to  apply  to  the  Court  of  Chancery,  to  carry  into  ejfect  its  own 
decree,  in  such  manner  as  shall  be  consistent  with  the  just  rights 
of  all  persons  who  do  not  claim  title  from  or  under  the  said  William 
Armistead,  since  the  pendency  of  the  said  suit  of  the  said  Jesse 
Simms,  whose  bill  was  filed  on  the  12th  day  of  May,  1797;  but, 
with  regard  to  the  said  William,  the  complainant  is  advised  that 
the  said  decree  and  proceedings  of  sale  are  final  and  conclusive. 
He  therefore  prays,  that  the  said  Thomas  and  Richard  Xewman, 
and  William  Armistead,  may  be  made  defendants  to  this  bill; 
that  the  decree  aforesaid  may  be  carried  into  effect,  in  favor  of  the 
complainant,  against  the  said  William  Armistead,  and  all  persons 
claiming  under  him,  since  the  12th  day  of  May,  in  the  year  1797,  kc. 

Thomas  Newman  answered,  that  he  had  purchased  of  William 
Armistead,  at  different  times,  between  the  years  1793  and  1797, 
about  326  acres  of  land,  out  of  the  tract  in  the  bill  mentioned;  that 
the  deeds  will  fully  show,  at  what  time  the  purchases  of  the  said 
land  were  made,  except  as  to  47  acres,  which  were  purchased  in 
October,  1793;  but,  that  the  defendant  did  not  get  a  conveyance 
from  the  said  William  Armistead,  unfit  the  month  of  Jiili/,  1797, 
at  or  about  which  time  he  purchased  a  further  quantity  of  104  acres, 
and  both  purchases  Avere  included  in  the  same  deed ;  that  the  defend- 
ant never  knew  anything  of  fJie  existence  of  the  suit  in  Chancery  for 
the  sale  of  the  lands  in  the  bill  mentioned,  until  long  after  he  had 
completed  his  purchases  of  the  aforesaid  lands  of  William  Armistead; 
nor  had  he  ever  seen  anything  of  the  mortgage  in  the  bill  mentioned; 
nor  did  he  know  that  any  such  mortgage  existed,  until  he  had  com- 
pleted those  purchases  and  obtained  his  deeds;  that  the  defendant 
also  purchased  of  John  B.  Armistead,  who  had,  before  that  time, 
purchased  of  William  Armistead,  about  513  acres  of  the  same  tract 
of  land,  on  or  about  the  month  of  April  or  May,  1800,  but  did  not 
get  a  conveyance  for  the  same,  until  the  month  of  April,  1801  ;  that 
at  the  sale  by  the  commissioners,  the  defendant  attended  with  liis 
deeds,  and  forbade  the  sale,  as  it  would  be  illegal,  and  the  title  was 
in  him.  He  therefore  charges,  that  the  complainant,  before  he  pur- 
chased of  Simms,  was  fully  apprised  of  the  title  of  the  defendant. 

Richard  ISTewman  stated  in  his  answer,  that,  as  to  the  transactions 
between  William  Armistead  and  Abraham  Morehouse,  and  the  mort- 
gage of  land  to  him  by  the  said  Armistead,  he  had  heard  nothing, 
until  several  years  after  he  had  purchased  of  William  Armistead 
163  acres  of  land,  at  40  shillings  per  acre,  and  had  the  deed  for  the 
same  recorded  in  the  County  Court  of  Prince  William,  which  record 
was  made  in  October,  1793;  and,  when  he  did  hear  that  such  a 
mortgage  Avas  in  existence,  he  also  heard  that  //  had  not  hcen  re- 
corded in  due  time  to  give  it  vaUdih/  (uinijist  the  claim  of  a  third 
person.     He,  therefore,  hopes,  that  his  title  to  the  lands  purchased 


730  NEWMAN    V.    CHAPMAN  [CHAP.   XI 

of  William  Armistead,  may  not  be  affected  by  any  decision  relative 
to  the  said  mortgage,  &c. 

The  deed  of  mortgage  from  William  Armistead  and  wife  to  Abra- 
ham Morehouse,  was  dated  on  the  3d  day  of  December,  in  the  year 
1794;  which  mortgage  was  assigned  by  David  Allison,  as  attorney 
for  the  said  Morehouse,  to  the  said  Simms,  by  virtue  of  a  power  of 
attorney,  which  was  attested  by  only  two  witnesses. 

A  deed  from  William  Armistead  and  Nancy,  his  wife,  and  John 
B.  Armistead  to  Thomas  Newman,  conveying  151  acres,  is  dated 
on  the  11th  day  of  September,  1797. 

A  deed  from  William  Armistead  to  Thomas  Newman,  dated  the 
26th  day  of  September,  1793,  for  175  acres. 

The  bill  to  foreclose,  brought  by  Jesse  Simms  against  William 
Armistead,  was  filed  on  the  12th  day  of  May,  1797. 

The  deed  made  by  the  commissioners  for  the  sale  of  the  land, 
under. a  decree  of  the  court,  to  Jesse  Simms,  is  dated  on  the  13th  day 
of  July,  1804. 

The  deed  from  Jesse  Simms  to  George  Chapman,  the  plaintiff, 
conveying  the  tract  of  land  on  which  William  Armistead  then  lived, 
containing  1140  acres,  more  or  less,  being  the  same  that  the  said 
Armistead  conveyed  to  Abraham  Morehouse,  by  deed  of  mortgage, 
dated  the  3d  of  December,  1794,  and  by  the  said  Morehouse  assigned 
to  the  said  Jesse  Simms. 

The  mortgage  from  Armistead  to  Morehouse  was  not  recorded 
within  the  time  prescribed  by  law. 

The  deed  from  William  Armistead  to  Richard  Newman,  convey- 
ing 163  acres,  is  dated  the  27th  day  of  Sef)tember,  1793, 

William  Armistead  never  answered  the  bill. 

The  Chancellor  decreed,  that  William  Armistead  and  Thomas 
Newman  should  severally  deliver  up  to  the  plaintiff,  possession  of 
all  the  lands  held  by  them,  mentioned  in  the  deed  of  mortgage  be- 
tween xirmistead  and  Morehouse,  except  175  acres  described  in  the 
deed  of  the  26th  of  September,  1793,  between  the  said  Armistead 
and  Thomas  Newman;  and,  that  one  of  the  commissioners  of  the 
court  should  make  up  an  account  of  the  rents  and  profits  of  the  lands 
so  directed  to  be  given  up,  from  the  9tli  day  of  August,  1804. 

Thomas  Newman  appealed  to  this  court. 

December  6.     Judge  Green  delivered  the  following  opinion :  — 

The  object  of  the  Statute  requiring  mortgages  to  be  recorded,  and 
declaring  that,  if  not  recorded  as  the  Statute  prescribes,  they  shall 
be  void  as  to  creditors  and  subsequent  purchasers,  was  to  prevent, 
by  affording  the  means  of  ascertaining  the  existence  of  the  encum- 
brance, the  frauds  which  might  otherwise  be  practised  by  the  mort- 
gagor and  mortgagee,  on  ci-editors  and  subsequent  purchasers,  by 
concealing  it.  If  a  purchaser  has  actual  notice  otherwise  of  the 
existence  of  the  mortgage,  he  is  not  only  not  prejudiced  by  the 
failure  to  record  it,  but  is  himself  guilty  of  a  fraud  in  attempting 


SECT.    Ill]  NEWMAN    V.    CHAPMAN  731 

to  avail  himself  of  tlie  letter  of  the  Statute,  to  the  prejudice  of  an- 
other who  has  a  just  claim  against  the  property.  The  Statute, 
indeed,  vests  in  the  subsequent  purchaser,  in  that  case,  the  legal  title ; 
yet,  although  the  legal  title  of  the  mortgagee  is  divested  by  the  subse- 
quent conveyance,  his  equitable  right  to  subject  the  property  to  the 
payment  of  the  debt,  remains;  not  only  because  the  mortgage  is 
good  between  the  parties;  but,  even  if  void  as  a  conveyance  between 
the  parties,  it  Avould  still  be  evidence  of  an  agreement  between  them, 
{ind  a  court  of  equity  will  give  effect  to  the  equity  of  the  mortgagee, 
by  holding  the  subsequent  purchaser  to  be  a  trustee.  Upon  these 
principles,  the  Court  of  Chancery  in  England  has  always  relieved  a 
prior  purchaser,  whose  deed  has  not  been  registered,  against  a  subse- 
quent purchaser  with  notice. 

I  had  at  one  time  great  doubts,  whether  the  principle  of  those 
decisions  did  not  apply  to  the  case  of  a  lis  pendens.  Lord  Hard- 
Avicke,  in  the  leading  case  of  Le  Neve  v.  Le  Neve,  3  Atk.  646,  de- 
clared, that  the  Statutes  of  Registry  in  England  (which,  as  to  the 
matter  under  consideration,  are  the  same  in  effect  as  our  Statute), 
only  vested  the  legal  title  in  the  subsequent  purchaser,  and  left  the 
case  "open  to  all  equity;"  and,  in  that  case,  he  relieved,  against 
a  subsequent  purchaser,  upon  constructive,  and  not  actual  notice, 
the  notice  being  to  an  agent  of  the  purchaser.  A  lis  pendens  has 
always  been  spoken  of  in  the  English  Court  of  Chancery,  as  a  con- 
structive notice  to  all  the  world;  as  all  men  are  bound  and  presumed 
to  take  notice  of  the  proceedings  of  a  court  of  justice.  If  these 
propositions  were  universally  true,  it  would  seem  to  follow,  that  a 
lite  pendente  purchaser  was  a  purchaser  with  notice,  and  would  take 
the  property  subject  to  the  claims  of  the  plaintiff  in  the  suit,  as  the 
defendant  held  it.  In  all  questions  of  fact,  the  existence  of  the 
matter  in  question  may  be  proved  by  direct  evidence,  or  by  the  proof 
of  other  facts,  from  which  it  may  be  justly  be  inferred,  that  the  fact 
in  question  does  exist.  A  fact  thus  proved  by  circumstantial  evi- 
dence, is  taken  to  exist  for  all  purposes,  as  if  it  were  proved  by  direct 
evidence.  I  cannot,  therefore,  feel  the  force  of  the  observation  fre- 
quently thrown  out  in  modern  cases,  that  a  notice  to  affect  a  subse- 
quent purchaser,  after  an  unregistered  deed,  must  be  actual,  and  such 
as  to  affect  his  conscience,  and  not  constructive.  A  notice,  proved 
by  circumstances  to  exist,  affects  the  conscience  of  the  party  as  much 
as  if  i)roved  by  direct  evidence.  In  all  other  cases,  a  purchaser  of 
a  legal  estate,  with  notice  of  a  subsisting  equity,  is  bound  by  con- 
structive, as  well  as  by  actual,  notice;  and  that,  because  his  conscience 
is  affected,  and  he  is  guilty  of  a  fraud.  Without  fraud  on  his  part, 
his  legal  title  ought  to  prevail.  I  see  no  reason  why  a  difference 
should  be  made,  between  the  case  of  n  ])urchaser  after  an  unregistered 
deed,  and  a  purchaser  of  a  legal  title,  subject  to  any  other  equity, 
as  to  the  proof  of  the  notice  which  ought  to  be  held  to  bind  them. 
This  distinction  between  an  actual  and  constructive  notice,  in  the 


732  NEWMAN    V.    CHAPMAN  [CHAP.   XI 

case  of  a  purchaser  after  an  unregistered  deed,  seems  to  have  j^ro- 
ceeded  from  a  doubt,  whether  the  relief  given  in  the  early  cases  u})on 
that  subject,  had  not  been  in  opposition  to  the  spirit  and  policy, 
as  well  as  the  letter,  of  the  Statutes  of  Registry. 

The  rule,  as  to  the  effect  of  a  lis  pendens,  is  founded  upon  the 
necessity  of  such  a  rule,  to  give  effect  to  the  proceedings  of  courts 
of  justice.  Without  it,  the  administration  of  justice  might,  in  all 
cases,  be  frustrated  by  successive  alienations  of  the  property,  which 
was  the  object  of  litigation,  pending  the  suit,  so  that  every  judgment 
{jnd  decree  would  be  rendered  abortive,  where  the  recovery  of  specific 
property  was  the  object.  This  necessity  is  so  obvious,  that  there 
was  no  occasion  to  resort  to  the  presumption,  that  the  purchaser 
really  had,  or  by  inquiry  might  have  had,  notice  of  the  pendency 
of  the  suit,  to  justify  the  existence  of  the  rule.  In  fact,  it  applied 
in  cases  in  which  there  was  a  physical  impossibility  that  the  pur- 
chaser could  know,  with  any  possible  diligence  on  his  part,  of  the 
existence  of  the  suit,  unless  all  contracts  were  made  in  the  office 
from  which  the  writ  issued,  and  on  the  last  moment  of  the  day. 
For,  at  common  laAv,  the  writ  w^as  pending  from  the  first  moment 
of  the  day  on  which  it  was  issued  and  bore  teste;  and  a  purchaser, 
on  or  after  that  day,  held  the  property  subject  to  the  execution  upon 
the  judgment  in  that  suit  as  the  defendant  would  have  held  it,  if  no 
alienation  had  been  made.  The  Court  of  Chancery  adopted  the  rule, 
in  analogy  to  the  common  law,  but  relaxed,  in  some  degree,  the 
severity  of  the  common  law.  For,  no  lis  pendens  existed  until  the 
service  of  the  subpoena  and  bill  filed;  but,  it  existed  from  the  ser- 
vice of  the  suhpcena,  although  the  bill  were  not  filed  until  long  after ; 
so  that  a  purchaser,  after  service  of  the  suhpoenu  and  before  the  bill 
was  filed,  would,  after  the  filing  of  the  bill,  be  deemed  to  be  a  lite 
pende7ite  purchaser,  and  as  such,  be  bound  by  the  proceedings  in  the 
suit,  although  the  subpoena  gave  him  no  information  as  to  the  sub- 
ject of  the  suit.  A  subpoena  might  be  served  the  very  day  on  which 
it  was  sued  out,  and  there  is  an  instance  in  the  English  books  of  a 
purchaser  who  purchased  on  the  day  that  the  subpoena  was  served, 
without  actual  notice,  and  who  lost  his  purchase  by  force  of  this 
rule  of  law.  This  principle,  however  necessary,  was  harsh  in  its 
effects  upon  bona  fide  purchasers,  and  was  confined  in  its  operation 
to  the  extent  of  the  policy  on  which  it  was  founded;  that  is,  to  the 
giving  full  effect  to  the  judgment  or  decree  which  might  be  ren- 
dered in  the  suit  depending  at  the  time  of  the  purchase.  As  a  proof 
of  this,  if  the  suit  was  not  prosecuted  with  effect,  as  if  a  suit  at  law 
was  discontinued,  or  the  plaintiff  suffered  a  nonsuit,  or  if  a  suit  in 
chancery  was  dismissed  for  want  of  prosecution,  or  for  any  other 
cause  not  upon  the  merits,  or  if  at  law  or  in  chancery  a  suit  abated ; 
although,  in  all  these  cases,  the  plaintiff,  or  his  proper  representative 
might  bring  a  new  suit  for  the  same  cause,  he  must  make  the  one 
who  purchased  pending  the  former  suit,  a  party;  and,  in  this  new 


SECT.    Ill]  NEWMAN    V.    CHAPMAN  733 

suit,  such  purchaser  would  not  be  at  all  affected  by  the  pendency  of 
the  former  suit  at  the  time  of  his  purchase.  In  the  case  of  an  abate- 
ment, however,  the  original  suit  might  be  continued  in  Chancery, 
by  revivor,  or  at  law,  in  real  actions,  abated  by  the  death  of  a  party, 
by  journies  accounts,  and  the  purchaser  still  be  bound  by  the  final 
judgment  or  decree.  If  a  suit  be  brought  against  the  heir,  upon 
the  obligation  of  his  ancestor  binding  his  heirs,  and  he  alienates 
the  land  descended,  pending  the  writ,  upon  a  judgment  in  that  suit, 
the  lands  in  the  hands  of  the  purchaser  would  be  liable  to  be  ex- 
tended, in  satisfaction  of  the  debt.  But,  if  that  suit  were  discon- 
tinued, abated,  or  the  plaintiff  suffered  a  nonsuit,  in  a  new  action 
for  the  same  cause,  the  purchaser  would  not  be  affected  by  the  pen- 
dency of  the  former  suit  at  the  time  of  his  purchase ;  and,  if  he  could 
be  reached  at  law,  in  equity  it  could  only  be,  upon  proof  of  actual 
notice  and  fraud.  If  a  Us  pendens  was  notice  then,  as  a  notice  at  or 
before  the  purchase  would,  in  other  cases,  bind  the  purchaser  in 
any  suit  in  equity,  prosecuted  at  any  time  thereafter,  to  assert  the 
right  of  which  he  had  notice,  would  bind  the  purchaser,  so  ought  the 
U^  pendens  to  bind  him  in  any  subsequent  suit  prosecuted  for  the 
same  cause;  but  it  does  not.  Again;  a  bill  of  discovery,  or  to  per- 
l)etuate  the  testimony  of  witnesses,  ought,  if  all  persons  were  bound 
to  take  notice  of  what  is  going  on  in  a  court  of  justice,  to  be  a 
notice  to  all  the  world,  as  much  as  a  bill  for  relief.  But,  these  are 
decided  to  be  no  notice  to  any  purpose;  a  proof  that  the  rule,  as  to 
the  effect  of  a  Us  pendens,  is  one  of  mere  policy,  confined  in  its  opera- 
tion strictly  to  the  purposes  for  which  it  was  adopted ;  that  is,  to 
give  effect  to  the  judgments  and  decrees  of  courts  of  justice,  and 
that  it  is  not  properly  a  notice  to  any  purpose  whatsoever.  The 
English  judges  and  elementary  writers  have  carelessly  called  it  a 
notice,  because,  in  one  single  case,  that  of  a  suit  prosecuted  to  decree 
or  judgment,  it  had  the  same  effect  upon  the  interests  of  the  pur- 
chaser, as  a  notice  had,  though  for  a  different  reason.  But,  the 
courts  have  not,  in  any  case,  given  it  the  real  force  and  effect  of  a 
notice. 

I  think  that  the  Statute  overrules  this  principle  of  law,  in  the 
case  of  a  lite  pendente  purchaser,  after  an  unrecorded  mortgage. 
The  decisions  in  the  cases  of  notice,  are  according  to  the  policy  and 
spirit  of  the  Statutes;  since,  in  those  cases,  the  purchaser  has  the 
very  benefit  which  the  law  intended  to  provide  for  him,  and  he  is 
chargeable  with  mala  fides,  in  attempting  to  acquire  that  to  which 
he  knows  another  has  a  just  right.  He  cannot  complain,  that  the 
mortgagee  has  done  him  an  injury  by  his  default  in  failing  to  record 
his  mortgage,  as  the  law  requires.  But,  if  the  ])urchaser  were  held 
to  be  affected  by  the  pendency  of  a  suit,  if  he  had  not  actual  notice, 
he  would  suffer  an  injury  by  the  default  of  the  mortgagee,  unless  it 
were  held  to  be  his  duty  to  inquire  if  any  suit  were  d(>i)ending^ 
when  he  had  no  reason  to  suspect  that  there  was  any  defect  in  the 


734  NEWMAN    V.    CHAPMAN  [CHAP.   XI 

title,  I  think,  that  to  require  him  to  look  to  any  other  source  of 
information  than  that  which  the  Statute  has  provided  for  him,  would 
be  contrary  to  the  spirit  and  policy,  and  letter  of  the  Statute. 

It  follows,  that  the  decree  is  erroneous,  as  it  respects  the  151  acres 
conveyed  to  the  appellant  in  September,  1797 ;  but,  as  to  the  513 
acres,  which  the  appellant  states  in  his  answer  that  he  purchased 
in  1800,  he  is  not  protected  by  the  Statute.  He  admits,  that  he 
came  into  the  possession  pendente  lite.  He  does  not  deny  notice  of 
the  mortgage,  if  that  fact  be  material,  upon  the  pleadings  in  this 
cause;  and  he  does  not  show  that  he  was  a  purchaser,  and  that  a 
conveyance  was  made  to  him.  As  to  this,  then,  the  decree  ought 
to  be  affirmed,  unless  the  other  objections  made  at  the  bar  ought 
to  prevail.  These  are,  that  the  suit  was  not  so  instituted  as  to  attach 
on  Morehouse's  title  under  the  mortgage,  he  not  being  a  party,  and 
there  being  no  evidence  that  his  title  was  in  the  plaintiff  in  that  suit; 
that  a  court  of  equity  has  no  jurisdiction,  as  the  plaintiff,  if  he  has 
a  right,  has  a  legal  remedy;  that  the  deed  under  which  the  plaintiff 
claims,  passed  no  title,  as  the  property  was  then  in  the  adverse  posses- 
sion of  another;  and,  that  the  rents  and  profits  should  be  ascertained 
by  a  jury,  and  not  by  a  commissioner. 

If  the  rule  be,  that  a  purchaser,  pending  the  suit,  is  bound  by  the 
decree  in  the  suit  as  the  defendant  is  bound,  then  it  is  too  late  now 
to  urge  the  first  of  these  objections.  It  might,  possibly,  have  been 
urged  by  Armistead,  whilst  the  suit  was  depending.  But,  failing 
to  do  so,  he  was  bound  by  the  decree,  whether  it  were  right  or  wrong. 
I  think,  however,  that  the  objection  could  not  have  been  relied  on 
with  effect,  in  the  original  suit.  The  power  of  attorney,  by  authoriz- 
ing the  attorney  to  dispose  of  the  mortgage,  for  and  in  the  name  of 
Morehouse,  authorized  him  to  convey  the  legal  title,  and  that  was 
the  effect  of  the  deed  to  Simms.  The  power  of  attorney  being  attested 
by  only  two  witnesses,  was  not,  for  that  cause,  defective.  The  law 
does  not  require  any  particular  form,  as  to  the  attestation  of  a  power 
of  attorney  to  convey  land :  as,  between  the  parties,  such  a  power 
may  be  proved  by  any  evidence,  which  would  be  sufficient  to  prove 
any  other  fact  in  a  court  of  justice.  A  court  of  equity  always  has 
jurisdiction  to  carry  into  effect  its  own  decrees.  In  this  case,  a  bill 
for  that  purpose  was  necessary;  as  well,  because  another  party,  not 
appearing  as  a  party  on  the  record,  had  become  interested,  as  on 
account  of  the  death  of  Simms.  The  decree  had  never  been  executed. 
If  there  had  been  no  change  of  the  interest,  and  Simms  had  lived, 
the  decree  might  have  been  executed,  and  Simms  let  into  possession 
by  the  ordinary  proceedings  in  the  court  for  that  purpose.  After 
the  decree  was  so  executed,  if  Simms,  or  his  assignee,  had  been  ousted 
or  disturbed,  he  or  his  assignee  would  have  been  bound  to  proceed 
at  law.  The  Court  of  Chancery  was  not  fundus  officio,  until  the 
decree  was  executed  by  the  delivery  of  possession, 

I  do  not  think,  that  Armistead  could  hold  a  possession  adverse  to 


SECT.   Ill]  NEWMAN    V.    CHAPMAN  735 

Morehouse  or  his  assignee,  and  consequently  the  conveyances  of 
Morehouse  and  Simms  passed  the  title  they  professed  to  pass,  unless 
the  sale  to  Newman  varied  the  case ;  but,  that  sale  being  made  pend- 
ing the  suit,  Newman  could  no  more  hold  an  adversary  possession, 
unless  he  had  taken  a  conveyance  without  notice,  than  Armistead 
himself  could.  Armistead  was  a  tenant  at  will,  and  so  was  Newman, 
standing  in  his  place. 

The  account  of  rents  and,  profits  might  as  well  be  taken  by  a 
commissioner,  as  ascertained  by  a  jury,  and  the  former  is  the  most 
usual  course.^ 

Judge  Coalter.  I  am  of  opinion,  that  the  Chancellor  erred  in 
his  decree,  in  directing  the  appellant  to  deliver  possession  of  the  tract 
of  151  acres,  conveyed  by  William  Armistead  to  him,  on  the  11th  of 
September,  1797,  by  the  deed  of  lease  and  release  in  the  record,  of 
that  date. 

The  bill  claims  to  set  up  a  mortgage,  executed  by  the  aforesaid 
William  Armistead,  of  anterior  date  to  the  above  conveyance;  but 
which  was  never  recorded,  purely  on  the  ground,  that  at  the  time  of 
the  purchase  by  the  appellant,  there  was  a  suit  pending  to  foreclose 
the  mortgage. 

If  the  Act  of  Assembly  in  regard  to  mortgages  not  recorded,  and 
which  was  in  force  at  the  time  this  bill  was  filed,  is  to  be  construed 
in  connection  with  the  previous  clause  in  relation  to  other  convey- 
ances, so  as  to  transpose  the  words  from  the  one  to  the  other,  in 
relation  to  notice,  and  thus  to  make  the  law  precisely  what  it  now  is, 
under  the  Act  of  1819;  let  us  inquire  how  the  appellee  would  have 
stood  in  a  court  of  law,  on  a  special  verdict,  finding  simply  the  mort- 
gage and  subsequent  conveyance,  and  a  suit  pending  to  foreclose  the 
mortgage  at  the  time  of  the  conveyance? 

The  case  for  him  would  rest  on  an  unrecorded  mortgage  against  a 
subsequent  conveyance,  and  which  is  expressly  declared  by  the  Act 
to  be  void  as  to  such  subsequent  purchaser,  not  having  notice  thereof. 
What  sort  of  notice?  Undoubtedly,  such  as  would  affect  the  con- 
science of  the  purchaser;  otherwise,  the  Act  would  be  no  safeguard 
to  the  innocent,  as  it  was  intended  to  be.  A  mere  lis  pendens  is  not 
such  notice  as  that.  This  has  been  decided,  as  will  be  seen  in  a  case 
mentioned  in  a  note  to  the  case  of  Le  Neve  v.  Le  Neve;  and,  also, 

1  The  following  were  the  cases  referred  to  by  Judge  Gheen,  in  the  course 
of  his  opinion:  Durbainc  v.  Knight,  1  Vorn.  318;  Prrston  v.  Txihhin,  Ibid. 
286;  15  Vin.  Abr.  128,  pi.  2;  Birch  v.  Wade,  Ves.  &  Beam.  200;  Murraj/  v. 
Ballow,  1  Johns.  Ch.  Cas.;  Littlcherry's  Cose,  5  Rop.  476;  Cro.  James.  340; 
2  Eq.  Ca.  Abr.  482;  lb.  685;  3  Vcs.  485;  1  Eq.  Ca.  Abr.  358;  Bcntut  v. 
Batchelor,  1  Ves.  jun.  64;  Ilabcrghatn  v.  Vincent.  Ibid.  68;  3  Atk.  243; 
Shanno7i  v.  Brndstreet,  1  Sch.  and  Lcfr.  66;  Brace  v.  D)/chesfi  of  Marlborough, 
2  P.  W.  491;  2  Vent.  337;  Brotherton  v.  Ilatt,  3  Vern.  574;  2  Eq.  Ca.  Abr. 
594;  Bac.  Abr.  tit.  Fraud.  letter  C;  Gooch's  Case,  5  Co.  Rep.  80;  1  Fonb. 
Eq.  279;  Curtis  v.  Perry,  6  Ves.  745;  Davis  v.  Earl  of  Strathmorc,  16  Ves. 
419;  Wi/att  v.  Harwell,  19  Ves.  439. 


736  NEWMAN    V.    CHAPMAN  [CHAP.   XI 

as  I  am  told,  in  a  late  case  which  I  have  not  examined,  reported  in 
19  Vesey.  A  court  of  law  could  not  substitute  any  other  kind  of 
notice  for  that  contemplated  by  the  Act.  But,  if  the  party  has 
ground  for  coming  into  equity,  that  court,  too,  I  presume,  must 
follow  the  law. 

But  if,  previous  to  the  Act  of  1819,  the  mortgagee  of  an  unrecorded 
mortgage  stood,  as  against  a  subsequent  purchaser,  as  he  did  in 
England  under  the  Registry  .Acts  (and  I  incline  to  think  he  did), 
then  his  only  remedy  was  in  equity;  and  there  he  can  only  prevail 
on  the  ground  of  fraud,  or  such  notice  as  would  aifect  the  conscience 
of  the  purchaser,  and  which  was,  therefore,  considered  a  fraud;  and 
it  has  been  decided  as  aforesaid,  and,  I  think,  correctly,  that  a  mere 
hs  pendens  did  not  affect  the  conscience. 

Suppose,  in  this  case,  the  appellant  had  not  denied  notice,  no 
charge  of  notice  being  in  the  bill,  but  had  simply  answered,  that  he 
had  purchased  for  value,  and  got  his  deed,  exhibiting  it  with  his 
answer,  and  had  demurred  to  the  residue  of  the  bill.  Could  the 
appellee  have  succeeded?  I  apprehend  not.  Or,  would  not  such  an 
answer  have  been  a  full  response  to  the  bill,  no  fraud  or  notice  being 
charged,  and  sufficient  of  itself  to  defeat  the  claim  of  the  appellee? 
I  am  much  inclined  to  think  it  would ;  and,  therefore,  had  the  appel- 
lant exhibited  a  deed  from  William  Armistead  to  John  B.  Armistead, 
and  from  the  latter  to  him  for  the  513  acres  mentioned  in  the  argu- 
ment, although  there  is  no  denial  of  notice  as  to  it,  I  should,  as  at 
present  advised,  have  thought  that  the  appellee  could  not  have  re- 
covered that  tract,  without  amending  his  bill,  and  putting  the  fact 
of  notice  or  fraud  in  issue ;  so  as  to  give  the  appellant  an  opportunity 
of  answering  thereto.  It  is,  however,  not  necessary  to  decide  this 
point,  because  the  appellant  does  not  show  himself  to  be  a  subsequent 
purchaser  of  that  tract,  and  it  is  only  against  such  that  the  mortgage 
is  void. 

Whether,  as  this  is  an  interlocutory  decree,  he  may  hereafter  be 
permitted  to  file  those  documents,  if  they  exist,  is  not  for  me  to 
know  or  anticipate.  On  the  record,  now  before  the  court,  the  decree 
must  be  reversed  as  to  the  151  acres,  and  affirmed  as  to  the  residue. 

Judge  Brooke  concurred :  and  a  decree  was  entered  conformable  to 
the  foregoing  principles.^ 

1  "  It  is  only  by  actual  notice  clearly  proved  that  a  registered  convey- 
ance can  be  postponed.  Even  a  Us  -pendens  is  not  deemed  notice  for  that 
purpose."  Per  Sir  William  Grant,  M.  R.,  in  Wyatt  v.  Barwcll,  19  Ves.  435, 
439. 

Accord,  Douglass  v.  McCrackin,  52  Ga.  596;  M'Cutchen  v.  Miller,  31 
Miss.  65,  85. 

Compare  Edwards  v.  Banksmith,  35  Ga.  213;  Grant  v.  Bennett,  96  111. 
513;  Smith  v.  Hodsdon,  78  Me.  180;  Jackson  d.  Hendricks  v.  Andrews,  7 
Wend.  (N.  Y.)   152. 

On  the  application  of  the  doctrine  of  lis  -pendens  to  chattels  personal,  see 
Boiling  v.  Carter,  9  Ala.  921;   McDermot  v.  Hayes,  175  Cal.  95;   State  v. 


SECT.    IV]  BOARD   OF   EDUCATION    V.    HUGHES  737 

SECTION   IV 

EEGISTKATION      ^•0T     IX     CHAIN     OF     TITLE 

BOARD  OF  EDUCATION  OF  MIXXEAPOLIS  v. 

HUGHES  AND  Others 

118  Minn.  404.     1912. 

Action  in  the  district  court  for  Hennepin  county  to  determine  ad- 
verse claims  to  a  certain  city  lot.  The  answer  alleged  tliat  Lucius  A. 
Hughes  was  the  sole  owner  and  plaintiff  had  no  right  in  or  title  to 
the  lot.  The  reply  alleged  that  the  deed  of  Hughes  was  delivered 
with  the  name  of  the  grantee  left  blank,  was  invalid  and  conveyed  no 
title,  and  plaintiff  had  no  notice  of  the  deed  until  December,  1910. 
The  case  was  tried  before  Hale,  J.,  who  made  findings  and  as  con- 
clusion of  law  ordered  judgment  in  favor  of  plaintiff.  From  an 
order  denying  their  motion  for  a  new  trial,  defendants  appealed. 
Reversed  and  noAV  trial  granted. 

BuNN,  J.  Action  to  determine  adverse  claims  to  a  lot  in  Min- 
neapolis. The  complaint  alleged  that  plaintiff  owned  the  lot,  and  the 
answer  denied  this,  and  alleged  title  in  defendant  L.  A.  Hughes. 
The  trial  resulted  in  a  decision  in  favor  of  plaintiff,  and  defend- 
ants appealed  from  an  order  denying  a  new  trial. 

The  facts  are  not  in  controversy  and  are  as  follows:  On  May  16, 
1906,  Carrie  B.  Hoerger,  a  resident  of  Faribault,  owned  the  lot  in 
question,  which  Avas  vacant  and  subject  to  unpaid  delinquent  taxes. 
Defendant  L.  A.  Hughes  offered  to  pay  $25  for  this  lot.  His  offer 
was  accepted,  and  he  sent  his  check  for  the  purchase  price  of  this  and 
two  other  lots  bought  at  the  same  time  to  Ed.  Hoerger,  husband  of 
the  owner,  together  with  a  deed  to  be  executed  and  returned.  The 
name  of  the  grantee  in  the  deed  was  not  inserted;  the  space  for  the 
same  being  left  blank.  It  was  executed  and  acknowledged  by  Carrie 
B.  Hoerger  and  her  husband  on  May  17,  1906,  and  delivered  to  de- 
fendant Hughes  by  mail.  The  check  was  retained  and  cashed. 
Hughes  filled  in  the  name  of  the  grantee, 'but  not  until  shortly  prior 
to  the  date  when  the  deed  was  recor(h'?t  which  was  December  16, 
1910.  On  April  27,  1909,  Duryea  &:  Wilson,  real  estate  dealers,  paid 
Mrs.  Hoerger  $25  for  a  quitclaim  deed  to  the  lot,  which  was  exe- 
cuted and  delivered  to  them,  but  which  was  not  recorded  until  De- 
cember 21,  1910.     On  November  19,  1909,  Duryea  &-  Wilson  executed 


Wichita  County,  59  Kan.  512;  Mabre  v.  }[ahcc,  85  N.  J.  Eq.  353.  358;  Smith 
V.  Curreathers  Co.,  184  Pac.  (Okla.)  102;  Pope  v.  Beau-champ,  110  Tex.  271; 
Wigram  v.  Buckley,  [1894]  3  Ch.  483. 

The  whole  doctrine  of  Us  pendens  is  frequcntlv  regulated  bv  statute. 
Mass.  Gen.  Laws  (1921),  C.  184.  §§  15-17;  St.  2  &  3  Vict.,  C  11,  §  7;  2 
Pomeroy,  Equity  Jur.,  4tli  cd.,  §§  640-643. 


738  VAN   RENSSELAER    V.    CLARK  [CHAP.   XI 

and  delivered  to  plaintiff  a  warranty  deed  to  the  lot,  which  deed 
was  filed  for  record  January  27,  1910.  It  thus  appears  that  the 
deed  to  Hughes  was  recorded  before  the  deed  to  Duryea  &  Wilson, 
though  the  deed  from  them  to  plaintiff  was  recorded  before  the  deed 
to  defendant. 

The  questions  for  our  consideration  may  be  thus  stated:  (1)  Did 
the  deed  from  Hoerger  to  Hughes  ever  become  operative?  (2)  If 
so,  is  he  a  subsequent  purchaser  whose  deed  was  first  duly  recorded, 
within  the  language  of  the  recording  act? 

1.  .  .  .  Our  conclusion  ^  is,  therefore,  that  the  deed  to  Hughes 
became  operative  as  a  conveyance  when  he  inserted  his  name  as 
grantee. 

2.  When  the  Hughes  deed  was  recorded,  there  was  of  record  a 
deed  to  the  lot  from  Duryea  &  Wilson  to  plaintiff,  but  no  record 
showing  that  Duryea  &  Wilson  had  any  title  to  convey.  The  deed 
to  them  from  the  common  grantor  had  not  been  recorded.  We  hold 
that  this  record  of  a  deed  from  an  apparent  stranger  to  the  title  was 
not  notice  to  Hughes  of  the  prior  unrecorded  conveyance  by  his 
grantor.  He  was  a  subsequent  purchaser  in  good  faith  for  a  valuable 
consideration,  whose  conveyance  was  first  duly  recorded;  that  is, 
Hughes'  conveyance  dates  from  the  time  when  he  filled  the  blank 
space,  which  was  after  the  deed  from  his  grantor  to  Duryea  &  Wilson. 
He  was,  therefore,  a  "  subsequent  purchaser,"  and  is  protected  by 
the  recording  of  his  deed  before  the  prior  deed  was  recorded.  The 
statute  cannot  be  construed  so  as  to  give  priority  to  a  deed  recorded 
before,  which  shows  no  conveyance  from  a  record  owner.  It  was 
necessary,  not  only  that  the  deed  to  plaintiff  should  be  recorded 
before  the  deed  to  Hughes,  but  also  that  the  deed  to  plaintiff's  grantor 
should  be  first  recorded.  Webb,  Record  of  Title,  §  158;  3  Wash- 
burn, Real  Property,  292;  Losey  v.  Simpson,  11  ]^.  J.  Eq.  246; 
Burhe  v.  Beveridge,  15  Minn.  160  (205);  Schoch  v.  BirdsaU,  48 
Minn.  443,  51  N.  V.  382. 

Our  conclusion  is  that  the  learned  trial  court  should  have  held 
on  the  evidence  that  defendant  L.  A.  Hughes  was  the  owner  of  the  lot. 
Order  reversed,  and  new  trial  granted. - 


VAN  RENSSELAER  and  Others  v.  CLARK. 

17  Wend.  (N.  Y.)  25.     1837. 

This  was  an  action  of  ejectment,  tried  at  the  Tompkins  Circuit  in 
June,  1835,  before  the  Hon.  Robert  MoncJl,  one  of  the  Circuit  judges. 

The  plaintiffs  showed  title  in  one  Derick  Schuyler,  to  lots  Xo.  57 
and  58  —  Ulysses,  in  the  military  tract,  containing  1,200  acres  of 

1  The  opinion  on  this  point  is  omitted. 

2  See  Tenn.  Co.  v.  Gardner,  131  Ala.  599;  Ora  v.  Bane,  92  Kan.  567. 


SECT.    IV]  VAN   RENSSELAER    V.    CLARK  739 

land  and  a  deed  from  Schuyler  to  James  Van  Rensselaer,  the  father 
of  the  plaintifi's,  bearing  date  25th  August,  1794,  conveying  the  two 
lots  for  the  consideration  of  fifty  dollars;  which  deed  was  recorded 
in  the  County  of  Cayuga,  2d  January,  1804.  The  plaintiffs  did  not 
prove  that  the  deed  was  deposited  according  to  the  requirement  of 
the  Act  of  1794.  Previoius  to  the  deed  from  Schuyler  to  Van  Rens- 
selaer being  recorded,  to  wit,  on  the  2d  July,  1799,  Derick  Schuyler 
for  the  consideration  of  $1000,  conveyed  the  same  lots  to  one  Philip 
H.  Schuyler,  who  procured  his  deed  to  be  recorded  on  the  25th  Octo- 
ber, 1802,  and  on  2d  April,  1805,  conveyed  lot  No.  57  to  one  Samuel 
Clark  for  the  consideration  of  .$1300.  Clark  in  1806,  conveyed  to 
James  Emott  for  the  consideration  of  $2500,  and  Emott  in  1833, 
conveyed  to  Mathias  Miller  for  the  consideration  of  $10,233.43. 
The  premises  in  question,  are  part  of  lot  No.  57,  and  at  tlie  com- 
mencement of  the  suit,  were  in  possession  of  the  defendant  as  the 
tenant  of  Miller.  It  was  proved  that  Philip  H.  Schuyler  at  the 
time  of  the  conveyance  to  him,  had  actual  notice  of  the  deed  to 
Van  Rensselaer;  this  evidence  was  objected  to  but  received  by  the 
judge,  who  charged  the  jury  that  Philip  H.  Schuyler  was  not  a  bona 
fide  purchaser  and  his  deed  was  void,  notwithstanding  it  was  first 
recorded,  if  at  the  time  he  took  his  conveyance  he  had  knowledge  or 
had  notice  of  the  previous  deed  to  Van  Rensselaer;  and  that  the 
record  of  the  deed  to  Van  Rensselaer  was  sufficient  notice  to  sub- 
sequent purchasers  and  rendered  void  the  conveyances  to  them.  The 
defendant  excepted  to  the  charge,  and  the  jury  found  for  the  plain- 
tiffs.    The  defendant  moves  for  a  new  trial. 

By  the  Court,  Cowen,  J.  The  question  of  knowledge  in  Philip 
II.  Schuyler  was  put  to  the  jury,  who  found  for  the  plaintiffs  as 
they  were  directed  to  do  by  the  judge,  on  being  satisfied  that  he 
had  actual  notice  of  the  prior  deed.  Their  finding  is  fully  sustained 
by  the  evidence. 

The  defendant  moves  for  a  new  trial  on  the  ground  that  James 
Van  Rensselaer's  deed,  not  being  deposited  as  required  by  the  Statute, 
was  fraudulent  and  void  as  against  P.  H.  Schuyler,  though  he  had 
full  notice.  To  this  the  answer  is,  the  Act  applies  only  to  such  deeds 
as  were  dated  prior  to  its  passage,  which  was  on  the  8th  January, 
1794.  Van  Rensselaer's  deed  was  dated  in  August  of  that  year.  The 
Statute  of  8th  January,  1794,  after  reciting  that  many  frauds  had 
been  committed  in  respect  to  these  bounty  lands,  by  forging  and  ante- 
dating conveyances  of  lands  to  different  persons,  and  various  other 
contrivances,  so  that  it  had  become  difficult. to  discover  the  legal  title; 
for  remedy  whereof  and  in  order  to  detect  the  said  frauds  and  to 
prevent  like  frauds  in  future,  enacted,  by  §  1,  that  all  deeds,  &c. 
theretofore  made  concerning  such  lands  should,  on  or  before  the  1st 
of  May,  1794,  be  deposited  with  the  clerk  of  the  city  and  county  of 
Albany;  and  that  those  not  so  deposited  should  be  adjudged  fraudu- 
lent and  void  against  the  subsequent  purchaser,  &c.  for  valuable  con- 


740  VAN   RENSSELAER    V.    CLARK  [CHAP.   XI 

sideration;  and  that  every  deed,  &c.  thereafter  to  be  made,  &c.  should 
be  adjudged  fraudulent  and  void  as  against  any  subsequent  purchaser, 
&c.  for  valuable  consideration,  unless  recorded  by  the  clerk  of  Herki- 
mer County,  before  the  recording  of  the  deed,  &c.  of  the  subsequent 
purchaser.  Other  counties  were  afterwards  substituted  as  places  of 
registry. 

It  is  objected  that  Schuyler's  deed  was  first  recorded.  The  answer 
o-iven  is,  he  had  actual  notice. of  Van  Rensselaer's  deed,  which  was 
held  sufficient  as  to  him  in  Jackson,  ex  dem.  Gilbert  v.  Burgott,  10 
Johns.  R.  457.  The  point  was  there  very  fully  examined  by  Chief 
Justice  Kent,  who  delivered  the  opinion  of  the  court,  and  the  import 
of  the  words  purchaser  for  a  valuable  consideration  was  considered 
synonymous  with  bona  fide  purchaser.  And  it  was  held  that  actual 
notice  takes  away  bona  fides  as  effectually,  under  this  Act,  as  under 
the  General  Registry  Act.  The  position  was  never  doubted  as  to  the 
latter,  and  was  so  expressly  adjudged  in  Jackson,  ex  dem.  Merrich  v. 
Post,  15  Wendell  588.  The  case  of  Jachson  v.  Burgott  turned  on  the 
very  points  arising  out  of  the  identical  Statute  on  which  the  titles 
of  these  parties  depend.  The  court  held,  1.  that  actual  notice  was 
equivalent  to  registry,  and  2.  that  this  was  so  as  w^ell  at  law  as  in 
equity.  That  it  is  so  in  equity  is  admitted  by  the  English  courts 
in  respect  to  the  Middlesex  Registry  Act,  7  Anne,  ch.  20,  §  1,  which 
was  the  model  of  this  Military  Registry  Act;  though  the  King's 
Bench  in  Doe  ex  dem.  Robinson  v.  Allsop,  5  Barn.  &  Aid.  142,  re- 
fused to  import  the  equitable  doctrine  into  a  court  of  law.  This  is 
but  little  m-ore,  probably,  than  a  dispute  about  form;  at  any  rate, 
it  is  enough  for  us  to  see  that  the  contrary  has  been  long  settled  in 
this  court. 

But  it  is  said  that  Clark  bought  of  Schuyler  on  the  faith  of  find- 
ing that  his  deed  was  first  recorded,  and  that  he  shall  not  be  holden 
to  look  farther,  and  run  the  hazard  of  actual  notice  to  Schuyler.  In 
Jachson  ex  dem.  Merrick  v.  Post,  it  was  held  that  the  registry  of  a 
deed  is  notice  to  every  one,  from  the  time  of  its  being  recorded,  even 
to  a  purchaser  standing  a  second  or  farther  remove  from  the  common 
source  of  title.  The  same  case  held  that,  having  such  notice,  the  pur- 
chaser takes  at  the  peril  of  his  immediate  grantor's  title  being  im- 
peached by  actual  notice,  though  his  deed  was  recorded  previous  to 
the  adverse  one.  This,  it  is  true,  was  under  the  General  Registry 
Acts;  but  if  the  case  of  Jackson  v.  Burgott  is  to  govern,  the  same 
rules  apply  to  deeds  of  military  bounty  lands.  That  case  holds, 
that  actual  notice  is  a  substitute  for  registry.  Under  both  Acts,  to 
entitle  the  purchaser  to  protection  he  must  be  a  bo7ia  fide  purchaser 
in  the  strict  sense  of  the  term.  He  must  not  have  notice  when  he 
buys.  If  the  registry  be  notice,  it  takes  away  bona  fides.  There  is 
nothing  to  distinguish  the  two  Acts  in  regard  to  the  effect  of  registry. 
By  both  it  is  declared  to  be  notice  in  much  the  same  phraseology. 
Under  the  General  Registry  Act  it  is  declared  that  every  conveyance 


SECT.    IVJ  MORSE    V.    CURTIS  741 

not  recorded  shall  be  void  as  against  any  subsequent  purchaser  in 
good  faWi  and  for  a  valuable  consideration,  whose  conveyance  shall 
be  first  duly  recorded.  1  R.  S.  756,  §  1.  The  Act  in  question,  3  R. 
S.  188,  §  1,  is,  that  it  "shall  be  adjudged  fraudulent  and  void  as 
against  any  subsequent  ■purchaser,  &c.  for  valuable  consideration." 
The  condition  of  the  subsequent  purchaser,  as  being  mediate  or 
immediate  from  the  common  source  of  title,  and  his  liability  to  be 
affected  with  notice,  must  be  the  same  in  both  cases.  The  only 
question  which  can  arise  is  in  respect  to  the  quality  of  his  purchase, 
the  first  cited  Statute  demanding  bona  fides,  the  latter  not  doing  so 
in  terms.  New  trial  denied} 


MORSE  V.  CURTIS 

140  Mass.  112.     1885. 

Morton,  C.  J.  This  is  a  writ  of  entry.  Both  parties  derive  their 
title  from  one  Hall.  On  August  8,  1872,  Hall  mortgaged  the  land 
to  the  demandant.  On  September  7,  1875,  Hall  mortgaged  the  land 
to  one  Clark,  who  had  notice  of  the  earlier  mortgage.  The  mortgage 
to  Clark  was  recorded  on  January  31,  1876.  The  mortgage  to  the 
demandant  was  recorded  on  September  8,  1876.  On  October  4,  1881, 
Clark  assigned  his  mortgage  to  the  tenant,  who  had  no  actual  notice 
of  the  mortgage  to  the  demandant.  The  question  is  which  of  these 
titles  has  priority. 

The  same  question  was  directly  raised  and  adjudicated  in  the 
two  cases  of  Connecticut  v.  Bradish,  14  Mass.  296,  and  Trull  v.. 
Blgelow,  16  Mass.  406.  These  adjudications  establish  a  rule  of 
property  which  ought  not  to  be  unsettled,  except  for  the  strongest 
reasons. 

It  is  true,  that,  in  the  later  case  of  Flynt  v.  Arnold,  2  Mot.  619, 
Chief  Justice  Shaw  expresses  his  individual  opinion  against  the 
soundness  of  these  decisions;  but  in  that  case  the  judgment  of  the 
court  was  distinctly  put  upon  another  ground,  and  his  r^marks  can 
only  be  considered  in  the  light  of  dicta,  and  not  as  overruling  the 
earlier  adjudications. 

Upon  careful  consideration,  the  reasons  u])on  which  tlu^  onrlior 
cases  were  decided  seem  to  us  the  more  satisfactory,  because  they 
best  follow  the  spirit  of  our  registry  laws  and  the  practice  of  the 
profession  under  them.  The  earliest  registry  laws  provided  that  no 
conveyance  of  land  shall  be  good  and  effectual  in  law  "  against  any 
other  person  or  persons  but  the  grantor  or  grantors,  and  their  heirs 
only,  unless  the  d(>ed  or  deeds  thereof  be  acknowledged  and  recorded 
in  manner  aforesaid."     St.  1783,  c.  37,  §  4. 

1  Mahoney  v.  Middleton.  41  Cal.  41;  Bni/lrs  v.  Yoinicj,  m  III.  127;  Cook 
V.  French.  96  Mich.  525;  TFoor/.s  v.  Garnet t.  72  Miss.  78;  /-'o/Va.w  v.  Pierce, 
30  Wis.  443,  accord.    And  see  The  W .  B.  Cole,  59  F.  R.  182. 


742  MORSE    V.    CURTIS  [CHAP.   XI 

Under  this  Statute,  tlie  court,  at  an  early  period,  held  that  the 
recording  was  designed  to  take  the  place  of  the  notorious  act  of 
livery  of  seisin;  and  that,  though  by  the  first  deed  the  title  passed 
out  of  the  grantor,  as  against  himself,  yet  he  could,  if  such  deed  was 
not  recorded,  convey  a  good  title  to  an  innocent  purchaser  who  re- 
ceived and  recorded  his  deed.  But  the  court  also  held  that  a  prior 
unrecorded  deed  would  be  valid  against  a  second  purchaser  who 
took  his  deed  with  a  knowledge  of  the  prior  deed,  thus  engrafting  an 
exception  upon  the  Statute.  Heading  of  Judge  Trowbridge,  3  Mass. 
575.     Marshall  v.  Fish,  6  Mass.  24. 

This  exception  was  adopted  on  the  ground  that  it  was  a  fraud  in 
the  second  grantee  to  take  a  deed,  if  he  had  knowledge  of  the  prior 
deed.  As  Chief  Justice  Shaw  forcibly  says,  in  Lawrence  v.  Stratton, 
6  Cush.  163,  the  rule  is  "  put  upon  the  ground,  that  a  party  with 
such  notice  could  not  take  a  deed  without  fraud,  the  objection  was 
not  to  the  nature  of  the  conveyance,  but  to  the  honesty  of  the  taker ; 
and,  therefore,  if  the  estate  had  passed  through  such  taker  to  a  ho7ia 
fide  purchaser,  without  fraud,  the  conveyance  was  held  valid." 

This  exception  by  judicial  exposition  was  afterwards  engrafted 
upon  the  Statutes,  and  somewhat  extended,  by  the  Legislature.  Rev. 
Sts.  c.  59,  §  28 ;  Gen.  Sts.  c.  89,  §  3 ;  Pub.  Sts.  c.  120,  §  4.  It  is  to  be 
observed  that,  in  each  of  these  revisions,  it  is  provided  that  an  un- 
recorded prior  deed  is  not  valid  against  any  persons  except  the 
grantor,  his  heirs  and  devisees,  "  and  persons  having  actual  notice  " 
of  it.  The  reason  why  the  Statute  requires  actual  notice  to  a  second 
purchaser,  in  order  to  defeat  his  title,  is  apparent :  its  purpose  is 
that  his  title  shall  not  prevail  against  the  prior  deed,  if  he  has  been 
guilty  of  a  fraud  upon  the  first  grantee;  and  he  could  not  be  guilty 
of  such  fraud,  unless  he  had  actual  notice  of  the  first  deed. 

N"ow,  in  the  case  before  us,  it  is  found  as  a  fact  that  the  tenant 
had  no  actual  knowledge  of  the  prior  mortgage  to  the  demandant 
at  the  time  he  took  his  assignment  from  Clark;  but  it  is  contended 
that  he  had  constructive  notice,  because  the  demandant's  mortgage 
was  recorded  before  such  assignment. 

It  was  held  in  Connecticut  v.  Bradish,  uhi  supra,  that  such  record 
was  evidence  of  actual  notice,  but  was  not  of  itself  enough  to  show 
actual  notice,  and  to  charge  the  assignee  of  the  second  deed  with  a 
fraud  upon  the  holder  of  the  first  unrecorded  deed.  This  seems  to  us 
to  accord  with  the  spirit  of  our  registry  laws,  and  with  the  uniform 
understanding  of  and  practice  under  them  by  the  profession. 

These  laws  not  only  provide  that  deeds  must  be  recorded,  but  they 
also  prescribe  the  method  in  which  the  records  shall  be  kept  and 
indexes  prepared  for  public  inspection  and  examination.  Pub.  Sts. 
c.  24,  §§  14-26.  There  are  indexes  of  grantors  and  grantees,  so  that, 
in  searching  a  title,  the  examiner  is  obliged  to  run  down  the  list  of 
grantors,  or  run  backward  through  the  list  of  grantees.  If  he  can 
start  with  an  owner  who  is  known  to  have  a  good  title,  as,  in  the 


SECT.    IV  ]  M^QUADE    V.    WILCOX  743 

case  at  bar,  lie  could  start  with  Hull,  he  is  obliged  to  run  through  the 
index  of  grantors  until  he  finds  a  conveyance  by  the  owner  of  the 
land  in  question.  After  such  conveyance,  the  former  owner  becomes 
a  stranger  to  the  title,  and  the  examiner  must  follow  down  the  name 
of  the  new  owner  to  see  if  he  has  conveyed  the  land,  and  so  on.  It 
would  be  a  hardship  to  require  an  examiner  to  follow  in  the  indexes 
of  grantors  the  names  of  every  person  who,  at  any  time,  through 
perhaps  a  long  chain  of  title,  Avas  the  owner  of  the  land. 

We  do  not  think  this  is  the  practical  construction  which  lawyers 
and  conveyancers  have  given  to  our  registry  laws.  The  incon- 
veniences of  such  a  construction  would  be  much  greater  than  would 
be  the  inconvenience  of  requiring  a  person,  who  has  neglected  to  re- 
cord his  prior  deed  for  a  time,  to  record  it,  and  to  bring  a  bill  in 
equity  to  set  aside  the  subsequent  deed,  if  it  Avas  taken  in  fraud  of 
his  rights. 

The  better  rule,  and  the  one  the  least  likely  to  create  confusion  of 
titles,  seems  to  us  to  be,  that,  if  a  purchaser,  upon  examining  the 
registry,  find  a  conveyance  from  the  owner  of  the  land  to  his  grantor, 
which  gives  him  a  perfect  record  title  completed  by  what  the  law, 
at  the  time  it  is  recorded,  regards  as  equivalent  to  a  livery  of  seisin, 
he  is  entitled  to  rely  upon  such  record  title,  and  is  not  obliged  to 
search  the  records  afterwards,  in  order  to  see  if  there  has  been  any 
prior  unrecorded  deed  of  the  original  owner. 

This  rule  of  property,  established  by  the  early  case  of  Connecticut 
V.  Bradish,  ought  not  to  be  departed  from,  unless  conclusive  reasons 
therefor  can  be  shown. 

We  are  therefore  of  opinion,  that,  in  the  case  at  bar,  the  tenant 
has  the  better  title;  and,  according  to  the  terms  of  the  report,  the 
verdict  ordered  for  the  demandant  must  be  set  aside,  and  a 

New  trial  granted} 


McQUADE  ET  Al.  v.  WILCOX  et  Al. 

183  N.  W.  (Mich.)  771.     1921. 

Appeal  from  Circuit  Court,  Oakland  County,  in  Clumccry;  Frank 
L.  Covert,  Judge. 

Bill  by  George  J.  McQuade  and  others  against  Mary  M.  Wilcox 
and  another.  From  <,lecree  for  plaintiffs,  defendants  appeal. 
Affirmed. 

Argued  before  Steere,  C.  J.,  and  Moore,  Fellows,  Stone,  Clark, 
Bird,  Sharpe,  and  Wiest,  JJ. 

Fellows,  J.  In  1910  dcfcndnnt  Mary  ^lillington  Wilcox  was  the 
owner  of  105  acres  of  farm  land  lying  along  Woodward  avenue  at  the 
10-mile  road.     It  was  over  in  Oakland  county  an<l  near  Koyal  Oak. 

1  Sec  Day  v.  Clark,  25  Vt.  397. 


744  MCQUADE    V.    WILCOX  [CHAP.    XI 

She  and  her  husband,  an  attorney  then  practicing  in  Detroit,  con- 
ceived the  idea  of  platting  a  portion  of  it  for  a  high-class  residential 
subdivision.  The  plat  was  prepared  and  recorded.  Its  residential 
and  restricted  character  was  made  the  subject  of  advertisement  and 
pointed  out  in  conversation  as  an  inducement  to  prospective  pur- 
chasers. A  general  plan  was  adopted  to  make  it  a  high-class  re- 
stricted residential  district.  A  considerable  number  of  men,  many 
of  them  with  children  growing  up,  desiring  a  home  in  such  a  district, 
purchased  lots.  Substantial  homes  were  built,  and  an  additional  sub- 
division was  platted  adjoining  it.  To  insure  and  preserve  the  resi- 
dential character  of  the  subdivisions,  substantially  uniform  restric- 
tions were  inserted  in  the  deeds  executed  by  Mrs.  Wilcox  to  the  pur- 
chasers. We  quote  the  restrictions  found  in  tlje  original  conveyance 
of  the  lot  now  owned  by  plaintiffs  McQuade : 

"  It  is  agreed  that  said  lot  shall  be  used  for  residence  purposes 
only;  that  only  one  (single)  residence  shall  be  placed  thereon,  the 
value  of  which  shall  be  not  less  than  $3,000.00,  the  front  wall  thereof 
to  be  at  least  50  feet  from  the  front  line  of  the  lot,  and  the  side  wall 
not  less  than  20  feet  from  the  side  line  of  the  lot,  and  all  other  build- 
ings in  the  rear  of  the  lot  and  at  least  150  feet  from  the  street  line. 
A  sewer  may  be  made  and  perpetually  maintained  along  the  rear  line 
of  the  lots  in  this  block  whenever  the  owners  of  a  majority  of  the 
frontage  of  lots  so  desire,  for  which  each  of  the  then  owners  of  prop- 
erty adjoining  said  sewer  line  agrees  to  pay  the  pro  rata  part  of  its 
cost  according  to  the  frontage  on  said  sewer  line.  These  conditions 
are  for  the  benefit  of  all  present  and  future  owners  of  property  in 
this  subdivision  and  are  to  remain  in  force  until  July  1,  1935,  and 
shall  then  terminate." 

All  of  the  deeds  executed  by  Mrs.  Wilcox  are  not  in  the  printed 
record.  Many  of  them  were  introduced  in  evidence  in  the  court  below. 
It  is  insisted  by  defendants'  counsel  that  most  or  all  of  them  use  the 
word  "  block "  instead  of  "  subdivision "  in  the  last  sentence  just 
quoted.  We  do  not  find  this  to  be  the  case  in  the  original  deed  to 
the  property  of  plaintiffs  Stanton.  The  language  there  found  is  as 
follows : 

"  These  conditions  are  for  the  benefit  of  all  present  and  future 
owners  of  property  in  this  subdivision  and  are  agreed  to  by  all  such 
owners  and  are  to  remain  in  force  until  July  1,  1935,  and  shall  then 
terminate." 

The  original  deeds  through  which  plaintiff  Hewitt  and  plaintiff 
Bogart  claim  use  the  word  "block,"  but  both  of  these  lots  are  in 
the  same  block,  if  it  may  be  said  there  are  blocks  on  the  plat,  as  the 
Wilcox  lot,  so  that  this  difference  in  the  word  used  becomes  unimpor- 
tant. As  we  understand  the  record,  the  deeds  all  contained  substan- 
tially the  same  restrictions. 

Lot  2  on  the  plat  is  a  very  large  lot  said  to  contain  four  acres.  On 
it  is  the  Wilcox  home,  built  before  the  platting.     It  is  a  large  sub- 


SECT.   IV]  MCQUADE   V.   WILCOX  745 

stantial  residence  and  faces  Woodward  avenue.  After  substantially 
all  the  lots  in  the  subdivision  had  been  sold  and  expensive  resi- 
dences had  been  erected  and  improvements  made  upon  them,  making 
the  neighborhood  a  high-class  residential  district,  all  in  conformity 
with  the  restrictions  and  without  a  breach  by  any  of  the  purchasers 
or  their  grantees,  Mrs.  Wilcox  on  May  29,  1919,  entered  into  a 
contract  with  one  Ben  B.  Jacob,  a  real  estate  dealer  of  Detroit,  to  sell 
him  the  Wilcox  home  together  with  part  of  lot  2  for  $47,500  to  be 
used  for  restaurant  or  cafe  purposes  with  this  clause  in  the  contract : 
"  Music,  dancing  and  other  legal  amusements  and  uses  are  per- 
mitted." Mr.  Jacob  transferred  the  contract  to  the  defendant  the 
Shelbourn  Company,  a  corporation  organized  for  the  purpose  of  own- 
ing and  operating  the  restaurant.  There  seems  to  have  been  a 
fruitless  attempt  to  adjust  differences,  and  this  bill  was  filed  by 
resident  owners  to  enforce  the  restrictions. 

[The  court  then  held  that  a  clear  case  for  the  relief  prayed  was 
made  against  defendant  Wilcox.  The  opinion  on  the  point  is 
omitted.] 

This  leaves  for  consideration  the  contention  of  defendant  the 
Shelbourn  Company  that  it  purchased  without  notice  of  the  re- 
strictions, and  is  therefore  not  bound  by  them.  This  presents  the 
most  difficult  question  in  the  case.  Before  considering  the  legal  ques- 
tion, let  us  restate  some  of  the  pertinent  facts :  Defendant  Wilcox 
originated  the  general  plan  of  restricting  all  the  lots  in  the  plat 
to  use  for  residential  purposes  only.  This  included  the  lot  upon 
which  her  home  was  located.  This  plan  she  incorporated  in  the 
deeds  executed  by  her  which  were  recorded.  By  these  restrictions 
reciprocal  negative  easements  were  created  (Allen  v.  City  of  Detroit, 
167  Mich.  464)  alike  upon  the  land  sold  and  upon  lot  2.  The  ques- 
tion therefore  presented  is  whether  the  recording  of  the  deeds  creat- 
ing these  reciprocal  negative  easements  gave  constructive  notice  to 
subsequent  purchasers  of  lot  2. 

The  courts  have  not  had  this  question  before  them  with  any  degree 
of  frequency.  The  !N^ew  Jersey  court  has  sustained  defendants'  con- 
tention. Glorieux  v.  Lighthipe,  88  N.  J.  Law  199,  96  Atl.  94,  Ann. 
Cas.  1917  E,  484,  and  the  decision  of  the  Supreme  Court  of  Colorado 
in  Judd  V.  Roh'mon,  41  Colo.  222,  92  Pac.  724,  124  Am.  St.  Rep.  128, 
14  Ann.  Cas.  1018,  has  that  effect.  Mr.  Tiffany  says  in  the  latest 
edition  of  his  work  on  Real  Property  (2  Tiffany  on  Real  Prop- 
erty, p.  2188,  edition  of  1920)  : 

"A  purchaser  is,  it  appears,  ordinarily  charged  witli  notice  of 
an  incumbrance  upon  the  property  created  by  an  instrument  which 
is  of  record,  although  the  primary  purpose  of  such  instrument  is, 
not  the  creation  of  such  incumbrance,  but  the  conveyance  of  neighbor- 
ing property.  For  instance,  if  one  owning  two  adjoining  city  lots 
conveys  one  of  them,  the  instrument  of  conveyance  expressly  grant- 
ing an  easement  as  against  the  lot  retained  in  favor  of  that  eon- 


746  MCQUADE    V.    WILCOX  [CHAP.   XI 

veyed,  the  record  of  such  conveyance  will,  it  seems,  affect  a  subse- 
quent purchaser  of  the  former  lot  with  notice  of  such  easement,  and 
he  will  take  subject  thereto.  In  such  a  case,  at  common  law,  the 
purchaser  would  take  subject  to  the  easement  previously  created,  as 
being  a  legal  interest,  irrespective  of  whether  he  has  notice  thereof, 
and  the  rule  in  this  respect  could  not  well  be  regarded  as  changed 
by  the  adoption  of  the  recording  law,  as  applied  to  a  case  in  which 
the  grant  of  the  easement  does  appear  of  record,  though  in  connec- 
tion with  the  conveyance  of  other  land,  to  which  the  easement  is 
made  appurtenant.  *  *  *  And  if,  in  conveying  lot  A,  the  grantor 
enters  into  a  restrictive  agreement  as  to  the  improvement  of  lot  B, 
retained  by  him,  a  subsequent  purchaser  of  lot  B  would  ordinarily 
be  charged  with  notice  of  the  agreement,  by  reason  of  its  record  as 
a  part  of  the  conveyancje  of  lot  A.  Were  he  not  so  charged,  the 
restrictive  agreement  might  be  to  a  considerable  extent  nugatory." 

The  court  of  last  resort  of  Maryland  had  the  question  before  it  in 
the  case  of  Loives  v.  Carter,  124  Md.  678,  93  Atl.  216,  and  there  said : 

"  In  holding  that  covenants  creating  such  limitations  may,  if  they 
manifest  that  intent,  be  enforced  against  the  grantees  of  the  original 
covenantors,  the  decisions  we  have  cited  on  that  subject  have  uni- 
formly indicated  that  such  a  right  could  be  asserted  only  against 
those  acquiring  title  with  notice  of  the  restrictions.  This  was  recog- 
nized as  a  reasonable  and  just  qualification  to  be  mentioned  in  con- 
nection with  a  statement  of  the  general  rule,  but  in  none  of  the  cases 
referred  to  was  any  intimation  required  or  given  as  to  the  nature 
of  the  notice  which  would  be  necessary  and  sufficient  to  charge  the 
assigns  of  the  grantor  with  the  observance  of  the  covenant.  In  each 
instance  the  party  sought  to  be  bound  by  the  restrictive  conditions 
appeared  to  have  actual  knowledge  of  their  terms.  It  was  therefore 
not  essential  in  the  former  cases  to  decide  whether  constructive  notice 
was  sufficient  to  support  such  a  liability,  and  that  question  is  now  pre- 
sented to  this  court  for  the  first  time.  *  *  * 

"  The  covenant  in  question  undoubtedly  vested  in  the  grantee  a 
substantial  interest  in  the  reserved  real  estate.  The  right  conferred, 
as  appurtenant  to  the  granted  lot,  to  enforce  the  prescribed  method 
of  improvement  as  to  the  remaining  parcels,  was  a  valuable  and 
important  consideration  for  the  purchase.  It  was  the  evident  design 
of  the  parties  the  interest  or  easement  thus  contracted  for  should 
be  securely  vested  in  the  vendee  and  given  all  the  protection  which  the 
law  affords.  To  that  end  the  covenant  was  inserted  in  the  deed  for 
the  lot,  to  which  the  right  was  appurtenant,  and  placed  upon  the 
public  land  records.  The  statute  does  not  require  that  such  an  agree- 
ment shall  be  recorded  in  the  form  of  a  separate  instrument.  The 
method  adopted  was  practical  and  appropriate  and  was  authorized  by 
the  law  as  a  means  of  safeguarding  the  rights  created  by  the  deed 
against  adverse  interests  of  later  origin.  In  our  opinion,  this  pur- 
pose has  been  accomplished  in  the  present  case.     As  the  appellee 


SECT.   IV]  MCQUADE  V.  WILCOX  747 

obtained  his  title  through  the  foreclosure  of  a  mortgage  which  was 
executed  after  the  easement  which  he  is  now  contesting  had  become 
a  matter  of  public  record,  he  is  chargeable  with  implied  notice  of  its 
existence  and  effect,  and  must  be  hold  to  have  acquired  his  property- 
subject  to  the  conditions  thus  imposed." 

The  Supreme  Court  of  Missouri  has  likewise  had  the  question 
under  consideration  in  King  v.  Union  Trii^t  Co.,  226  Mo.  351,  126 
S.  W.  415.    After  considering  some  of  the  cases,  it  is  said  : 

"From  this  decision,  and  the  Maguire  Case  referred  to  therein, 
it  is  clear  that  a  purchaser  is  affected  with  constructive  notice  of  all 
duly-recorded  conveyances  by  his  grantor  affecting  the  hitter's  title; 
and  the  deed  to  Mrs.  Sweringcn  did  affect  the  grantor's  title  ui  this, 
that  the  grantor  could  not  convey  any  of  the  lots  in  '  Hex  sub- 
division '  saA'C  subject  to  the  restrictions  and  conditions  set  out  in 
the  deed  to  Mrs.  Sweringen.  In  that  deed  the  grantor  covenanted 
'  that  it  will  not  at  any  time  thereafter  convey  or  otherwise  dispose 
of  any  lot  in  Rex's  subdivision  except  upon  and  subject  to  such  re- 
strictions and  conditions  as  are  hereinbefore  mentioned,  and  as  are 
common  to  all  the  lots  in  said  subdivision.'  The  rule  is  that  a  recital 
in  a  deed  of  a  fact  will  generally  conclude  the  grantor  and  his 
privies." 

The  court  then  considers  some  further  authorities  and  concludes 
on  this  subject : 

"  The  foregoing  decisions,  and  many  more  which  we  might  cite, 
but  with  which  we  do  not  deem  it  necessary  to  burden  this  opinion, 
make  it  clear  to  our  mind  that  the  defendant  was  bound  by  the 
covenants  and  restrictions  in  the  recorded  deed  of  the  "Rex  "Realty 
Company  to  Mrs.  Sweringen,  and  of  which  the  defendant  must  be 
held  to  have  constructive  notice." 

The  question  was  also  considered  and  decided  in  Holt  v.  Fhisrh- 
man,  75  App.  Div.  593,  78  N.  Y.  Supp.  647.  We  quote  from  the 
syllabus : 

"  Plaintiff's  grantor,  owning  several  adjoining  lots,  conveyed  a 
part  of  the  property  to  plaintiff  under  a  deed  containing  a  covenant 
providing  that,  on  the  im])rovement  of  her  adjoining  lots,  the 
houses  erected  thereon  should  be  on  a  line  with  the  fronts  of  the 
present  adjoining  houses  annexed  thereto,  which  deed  was  duly  re- 
corded; and  defendant  acquired  title  to  such  adjoining  property 
under  a  deed  in  partition  between  the  heirs  of  such  prior  grantor. 
Held,  that  defendant  was  bound  to  take  notice  of  the  record  of  plain- 
tiff's deed,  and  was  therefore  bound  by  the  restrictive  covenant  there- 
in contained,  imposing  an  easement  on  the  adjoining  property." 

Upon  principle  we  think  the  rule  adopted  by, Mr.  Tiffany  and  the 
Maryland,  Missouri,  and  New  York  courts  is  the  correct  one.  By 
the  deeds  executed  by  Mrs.  Wilcox  a  negative  easement  was  by  her 
placed  upon  lot  2.  When  these  deeds  were  placed  on  record  this 
gave  constructive  notice  of  that  negative  easement.     Defendant  the 


748  DAY   AND   DAY    V.    MUNSON,    SPEAR   ET   AL.         [CHAP.   XI 

Slielbourn  Company  was  not  a  bona  fide  purchaser  and  took  subject 
to  the  rights  of  the  plaintiffs. 

Upon  the  argument  it  was  pointed  out  that  the  Shelbourn  Com- 
pany had  expended  some  money  and  entered  into  engagements  for 
tlie  carrying  out  of  the  plan  of  converting  the  Wilcox  home  into  a 
restaurant.  But  there  has  been  no  laches  on  the  part  of  plaintiffs. 
As  soon  as  they  learned  of  the  sale  they  at  once  took  up  the  matter 
with  Mr.  Wilcox  and  the  officers  of  the  company.  Failing  by  nego- 
tiations to  secure  their  rights,  this  bill  was  filed. 

The  decree  will  be  affirmed,  with  eosts.^ 


SECTION   V 

MARSHALLING 

DAY  AND  DAY  V.  MUNSON,  SPEAE  et  Al. 

14  Ohio  St.  488.     1863. 

Reserve!)  in  the  District  Court  of  Cuyahoga  County. 

This  action  was  instituted  by  the  plaintiffs,  to  enforce  the  liens 
which  they  claim  were  secured  to  them  by  two  mortgages  upon  cer- 
tain chattel  property,  executed  by  the  defendants,  Munson  &:  Spear 
to  secure  certain  indebtedness  to  them. 

The  Cleveland  Paper  Mill  Company,  as  the  assignee  of  T.  L.  Wil- 
cox, to  whom  a  mortgage  was  executed  upon  the  same  property  sub- 
stantially, and  Younglove  &:  Hoyt,  who  likewise  received  from  said 
Munson  &  Spear  a  mortgage  on  the  same  property,  were,  among 
others,  made  parties. 

The  dates,  times  of  filing  and  refiling,  and  the  amounts  due  on 

each  of  these  mortgages,  on  the  day  of  September,   1861,  as 

found  by  the  District  Court,  are  as  follows :  — 

1.  First  mortgage  to  the  plaintiffs,  dated  December  12,  1857,  filed 
February  16,  1858;  refiled  March  22,  1859;  amount  $995. 

2.  Second  mortgage  to  the  plaintiffs,  dated  July  3,  1858,  filed 
July  6,  1858;  refiled  July  7,  1859;  amount  $467.56. 

3.  Mortgage  to  Wilcox,  dated  July  6,  1858,  filed  July  6,  1858; 
refiled  July  1,  1859;  amount  $54.17. 

4.  Mortgage  to  Younglove  &  Hoyt,  dated  October  28,  1858,  filed 
October  28,  1858;  refiled  October  14,  1859;  amount  $949.75. 

The  pleadings  and  the  findings  of  the  District  Court,  show  that 
the  Wilcox  mortgage  had  originally  been  given,  with  full  knowledge, 
on  the  part  of  Wilcox,  of  plaintiffs'  mortgages,  to  secure  the  pay- 
ment of  $1000,  due  from  Munson  &:  Spear;  that  on  the  30th  Decem- 
ber, 1858,  Wilcox  assigned  said  mortgage  to  defendant  Warren  to 

1  Compare  Smith  v.  Lockwood.  100  Minn.  221. 


SECT.    V]  DAY   AND   DAY    V.    MUNSON,   SPEAR   ET   AL.  749 

secure  the  amount  then  due  Warren  from  Wilcox  (which  the  court 
found,  as  above,  to  amount  to  $54.17,  on  the  day  of  Septem- 
ber, 1861),  also,  to  secure  any  future  advances  which  Warren  might 
make  for  Wilcox,  or  liabilities  which  he  might  incur  for  him.  That, 
on  the  first  of  January,  1859,  Wilcox  became  the  purchaser  of  the 
property'  from  Munson,  subject  to  the  above  mortgages,  and  agree- 
ing to  pay  them  off,  except  the  one  to  himself.  That,  about  Septem- 
ber, 1859,  Warren  made  advances  for  Wilcox,  or  became  liable  for 

him  to  the  amount,  with  interest  to  said  day  of  September, 

1861,  of  $408.44.  That  the  remainder  of  the  Wilcox  mortgage  was, 
subsequent  to  the  commencement  of  this  suit,  assigned  by  Warren, 
at  the  request  of  Wilcox,  to  the  Lake  Erie  Paper  Mill  Company, 
who  are  now  the  owners  of  any  benefit  that  may  be  derived  therefrom. 

The  amount  which  may  ultimately  be  realized  from  the  mortgaged 
property,  is  yet  uncertain;  but  there  is  reason  to  apprehend  that  the 
proceeds  of  its  sale  will  be  insufficient  to  discharge  the  amount 
due  to  the  plaintiffs  on  their  two  mortgages,  the  amount  found  due 
to  Warren,  as  the  assignee  of  the  Wilcox  mortgage,  and  the  amount 
due  Younglove  &  Hoyt  under  their  mortgage.  And  with  a  view  to 
the  adjustment  and  determination  of  the  respective  priorities  of 
these  mortgagees,  the  questions  of  law  arising  upon  the  facts  found 
by  the  District  Court,  and  slioAvn  by  tlic  pleadings,  have  been  reserved 
for  tlie  decision  of  this  court. 

S(^oTT,  J.  Tlie  first  question  arising  in  this  case  is.  whether  by 
force  of  the  Statute,  the  plaintiffs'  mortgages,  upon  the  failure  to 
refile  them  within  one  year  from  the  time  of  the  first  filing,  became 
void  as  against  Younglove  &r  Hoyt,  whose  mortgage  was  executed 
and  filed  within  the  year,  and  who  received  the  same  without  actual 
notice  of  plaintiffs'  mortgages. 

The  fourth  section  of  the  Act  requiring  mortgages  or  bills  of  sale 
of  personal  property  to  be  de])osite<]  with  to^\^lship  clerks,  provides 
that,  "  Every  mortgage  so  filed,  shall  l)e  void,  as  against  the  preditors 
of  the  person  making  the  same,  or  against  siihseqnent  purchasers  or 
mortgagees  in  good  faith,  after  the  expiration  of  one  year  from  the 
fiJing  thereof,  unless,  within  thirty  days  next  preceding  the  expira- 
tion of  the  said  term  of  one  vcar.  a  true  copy  of  such  mortgage,  to- 
gether with  a  statement  exhil)itiiig  flic  interest  of  the  mortgagee  in 
the  property  at  the  time  last  aforesaid,  claimed  by  virtue  of  such 
mortgage,  shall  be  again  filed  in  the  office,"  kc.     S.  &-  C.  St.  476. 

The  first  section  of  the  same  Act  provides  that  mortgages  of 
goods  and  chattels,  not  accompanied  by  delivery,  and  followed  by 
actual  and  continued  change  of  possession,  shall  be  void  as  against 
creditors,  and  subsequent  purchasers,  and  mortgagees  in  good  faith, 
unless  the  mortgage,  or  a  true  copy  thereof,  shall  be  forthwith 
deposited,  &e. 

The  question  in  this  case  turns  u])on  tli<>  jiroper  construction  and 
meaning  of  the  expression  "  subsequent  purchasers  and  mortgagees  in 
good  faith,"  as  used  in  these  sections. 


750  DAY   AND   DAY    V.    MUNSON,    SPEAR   ET   AL.         [CHAP.   XI 

It  is  well  settled,  in  New  York,  under  a  Statute  substantially 
similar,  and  from  which  our  own  has  been  mainly  copied,  that  to 
constitute  "good  faith"  on  the  part  of  the  subsequent  mortgagee, 
there  must  be  the  absence  of  actual  notice  of  the  existence  of  the 
prior  mortgage.  And  so  it  was  held  by  this  court,  in  Paine  et  al.  v. 
Mason  et  al,  7  Ohio  St.  Kep.  198.  In  that  case,  it  was  also  held, 
that  constructive  notice  alone,  of  the  prior  mortgage,  would  not 
constitute  mala  fides  on  the  part  of  the  subsequent  mortgagee;  and 
that  as  against  him,  the  priority  of  the  first  mortgage  could  not  be 
retained,  without  refiling  pursuant  to  Statute. 

That  decision,  unless  overruled,  must  be  fatal  to  the  claim  of  the 
plaintiffs  in  this  case.  We  are  accordingly  asked  to  reconsider  the 
question  thus  decided,  on  the  ground  that  the  court,  in  that  case,  as- 
sumed, without  full  consideration,  that  the  term  "  subsequent  "  in 
each  of  these  sections  had  relation  to  the  same  thing;  that  is,  to  the 
time  of  the  execution  of  the  mortgage  declared  to  be  void;  whereas 
the  policy  of  the  Statute  requires  the  term  "  subsequent,"  in  the 
fourth  section  of  the  Act,  to  be  construed  as  relating  to  the  expira- 
tion of  the  year  within  which  the  refiling  is  required.  And  in  sup- 
port of  this  view,  we  are  referred  to  the  case  of  Meach  v.  Patchen, 
4  Kernan  71,  in  which  it  was  so  held  by  the  Court  of  Appeals  of  'New 
York  (Mitchell,  J.,  dissenting).  The  decision  of  the  majority  of 
the  court,  in  that  case,  is  supported  by  reasoning,  which  is,  certainly, 
not  without  force.  But  it  is  a  construction  given  to  the  Statute  after 
its  adoption  in  this  State,  and  in  opposition  to  the  opinion  expressed 
by  Justice  Cowen,  in  Gregory  v.  Thomas,  20  Wend.  19,  prior  to  the 
enactment  of  the  Statute  in  this  State.  This  latter  opinion,  it  is 
true,  was  of  an  obiter  character,  but  I  am  not  aware  of  any  New 
York  decision  to  the  contrary,  prior  to  the  enactment  of  our  own 
Statute.  Subsequent  decisions,  which  could  not  have  been  before  the 
mind  of  the  Legislature,  can  throw  no  light  on  its  intentions.  Be- 
sides, the  phraseology  of  the  fourth  section  of  the  Statute  of  this 
State  differs  somewhat  from  that  of  the  corresponding  section  in  the 
New  York  Act,  and  is  such  that  the  term  "  subsequent,"  in  the 
fourth  section,  cannot  well  be  regarded  as  referring  to  any  later 
point  of  time  than  the  original  filing  of  the  mortgage.  The  language 
is,  "  Every  mortgage  so  filed  shall  be  void,  as  against  the  creditors 
of  the  person  making  the  same,  or  against  subsequent  purchasers  or 
mortgagees  in  good  faith,"  <S:c.  Subsequent  to  what?  The  phrase- 
ology would  import,  subsequent  to  the  making,  or  to  the  filing  of  the 
mortgage,  which  are  the  only  acts  previously  spoken  of.  As  the  term 
refers  clearly  to  the  making  of  the  mortgage  in  the  first  section,  it 
should  not,  without  strong  reason,  be  differently  construed  in  the 
fourth.  And  we  think  it  by  no  means  clear,  that  the  policy  of  the 
Act  designed  to  place  a  mere  creditor  on  a  better  footing  than  a 
bona  fide  mortgagee,  in  respect  to  the  laches  of  a  prior  mortgagee. 
Where  a  subsequent  mortgage  is  taken  in  good  faith,  and  without 


SECT.   V]  DAY   AND   DAY    V.    MUNSON,    SPEAR   ET   AL.  751 

actual  notice  of  a  prior  one,  no  satisfactory  reason  is  perceived,  why 
the  rights  of  its  owner  shouhl  depend  on  the  fact  of  its  date  being 
one  day  before,  or  one  day  after,  the  Laches  of  the  first  mortgagee. 
In  either  case,  the  Statute  may  reasonably  have  intended,  that  such 
laches  should  inure  to  the  benefit  of  the  specific  lienholder,  as  well 
as  to  that  of  the  mere  creditor. 

Besides,  no  disapprobation  of  the  construction  given  to  the  Statute, 
in  the  case  of  Paine  v.  Mason,  has  been  indicated  by  any  subsequent 
legislation;  and  when  to  this  acquiescence  we  add  the  further  con- 
sideration, that  a  decision  which  has  become  knoAvn,  and  been  acted 
on  as  an  established  rule  of  property,  should  not  be  lightly  over- 
ruled, and  the  law  be  thereby  rendered  uncertain,  we  are  satisfied 
that  the  former  decision  of  this  question  should  stand  as  the  law  of 
this  State,  until  changed  by  legislative  authority. 

The  case,  then,  stands  thus:  The  plaintiffs'  mortgages,  not  having 
been  refiled,  pursuant  to  Statute,  are  void  as  to  Younglove  &  Hoyt, 
the  third  mortgagees;  but  the  plaintiffs  retain  their  priority  of  lien 
over  Warren,  who  holds  under  Wilcox,  the  second  mortgagee,  and 
whose  mortgnce  was  taken  with  actual  notice  of  the  plaintiffs'  prior 
mortgages.  Warren's  lien  under  the  Wilcox  mortgage  has  priority 
over  that  of  the  tliird  mortgagees,  and  is  not  to  be  affected  by  the 
laches  of  the  plaintiffs.  The  plaintiffs'  mortgages  are,  then,  not  to 
affect  the  rights  of  the  third  mortgagees;  nor  is  the  laches  of  the 
plaintiffs  to  affect  the  rights  of  the  second  mortgagee;  and  whatever 
lights  these  conditions  leave  to  the  plaintiffs  they  still  retain.  The 
result  will  be,  if  the  fund  is  -insufficient  for  the  discharge  of  all  mort- 
gages, that  the  third  mortgagees,  Younglove  &  Hoyt,  are  entitled  to 
so  much  of  the  fund  as  would  be  applicabh;  on  their  mortgage,  after 
satisfying  Warren's  prior  lien.  Warren  is  entitled  to  so  much  of 
the  fund  as  would  be  applicable  to  the  satisfaction  of  his  claim, 
leaving  the  third  mortgage  out  of  the  question,  and  preserving  the 
plaintiffs'  priority  of  lien.  And  the  plaintiffs  are  entitled  to  the 
residue. 

The  case  will,  therefore,  be  remanded  to  the  District  Court,  for 
decree  and  distribution  pursuant  to  the  foregoing  opinion  of  this 
court,  and  for  such  further  decree  as  may  become  necessary. 

Brinkerhoff,  C.  J.,  and  Wilder  and  White,  JJ.,  concurred. 

Ranney,  J.,  having  been  of  counsel,  did  not  sit  in  this  case.'^ 

1  See  Goodbar  v.  Dunn,  61  Miss.  618. 


752  SAYRE    V.    HE  WES  [CHAP.   XI 

SAYRE  V.  HEWES  and  Others 
32  N.  J.  Eq.  652,  33  N.  J.  Eq.  552.i     1880,  1881.    ■ 

On  final  hearing  on  bill,  answer  and  proofs. 

The  Vice-Chancellor.  [Van  Fleet.]  This  is  a  strife  for  posi- 
tion. The  facts  material  to  the  controversy  are  as  follows :  On  the 
3d  of  December,  1877,  Mrs.  Margaret  V.  Hewes  executed  a  chattel 
mortgage  on  certain  chattels,  then  being  in  a  building  in  the  city  of 
jN'ewark,  to  Francis  M.  Hoag,  and  the  mortgage  was,  on  the  same 
day,  filed  in  the  office  of  the  register  of  the  county  of  Essex ;  a  second 
m.ortgage  on  the  same  chattels  was  executed  by  Mrs.  Hewes  to  Fred- 
erick Fisher,  February  14th,  1878,  which  was  filed  March  2d,  1878, 
in  the  office  of  the  register  of  Hudson  County ;  a  third  mortgage  was 
executed  by  Mrs.  Hewes  to  the  complainant  (Edward  Sayre),  on  the 
same  chattels,  February  25th,  1878,  which  was  also  filed  in  the  office 
of  the  register  of  Hudson  County  on  the  day  of  its  date;  on  the  27th 
of  February,  1878,  the  complainant  recovered  a  judgment  against 
Mrs.  Hewes,  by  confession,  in  the  Essex  County  Circuit  Court,  and 
another  judgment  was  recovered  against  her,  by  confession,  in  the 
same  court,  by  Albert  H.  Hewes,  on  the  2d  of  March,  1878.  Exe- 
cutions were  immediately  issued  upon  these  judgments,  and  levies 
made  upon  the  chattels  covered  by  the  three  mortgages.  Albert  H. 
Hewes  assigned  his  judgment  to  the  complainant  immediately  after 
its  recovery.  ISTo  consideration  was  paid  for  the  assignment.  The 
complainant  and  Frederick  Fisher  knew,  when  they  received  the 
mortgages  made  to  them,  that  Mrs.  Hewes  had  previously  executed 
a  mortgage  to  Mr.  Hoag.  They  are  subsequent  mortgagees  with 
notice  of  the  antecedent  mortgage. 

]!^either  of  the  complainant's  securities  is  founded  on  a  debt 
actually  existing  at  the  time  it  was  obtained.  Both  were  given  for 
the  same  purpose.  The  complainant  had  become  surety  for  Mrs. 
Hewes,  on  a  bond  given  by  her  to  the  ordinary,  in  1874,  on  obtain- 
ing a  letter  of  guardianship  for  one  of  her  children.  The  mortgage 
executed  to  him,  and  the  judgment  recovered  by  him,  were  intended, 
as  he  testifies,  to  secure  him  against  loss  in  consequence  of  his  con- 
tract of  suretyship  for  her.  Prior  to  getting  these  securities,  he 
had  paid  nothing  on  account  of  that  contract;  he  neither  paid  any- 
thing, nor  expressly  bound  himself  to  stand  as  principal  in  that 
contract,  at  the  time  he  obtained  these  securities,  and  he  has  paid 
nothing  since,  nor  incurred  any  new  or  additional  obligation.  The 
mortgage  and  judgment  w^ere  without  other  consideration  than  the 
complainant's  contingent  liability  as  such  surety.  No  debt  actually 
existed  at  the  time  they  were  obtained,  and  none  has  subsequently 
been  created.     In  the  papers,  the  complainant  has  styled  himself 

1  In  the  latter  court  sub  nom.  Hoag  v.  Sayre. 


SECT.   V]  SAYRE    V.    HEWES  753 

trustee  of  Mrs.  Howes'  ward,  but  his  act,  in  this  respect,  as  a  matter 
of  law,  is  a  mere  piece  of  assumption.  As  surety  of  the  guardian, 
he  had  no  authority  to  constitute  himself  trustee  of  her  ward,  and 
thus,  in  virtue  of  his  OAvn  act,  without  paying  anything,  or  binding 
himself  to  bear  the  whole  burden  of  her  obligation,  put  himself  in  a 
position  where  he  is  entitled  to  be  recognized  against  other  lien- 
holders,  as  a  creditor  invested  with  the  rights  of  the  ward.  While 
Mrs,  Hewes  remained  guardian,  she  was  the  sole  representative  of 
the  ward,  and  her  sureties  had  no  right,  in  virtue  of  their  liability 
for  her,  to  assume  the  position  of  creditors  against  her  in  respect 
to  her  ward's  estate. 

The  mortgages,  it  will  be  observed,  were  filed  iu  ditlerent  counties 
—  those  given  to  the  complainant  and  Mr.  Fisher  having  been  filed 
in  Hudson,  and  that  given  to  Mr.  Hoag,  in  Essex.  The  chattels 
mortgaged  were,  at  the  time  the  mortgages  were  executed,  in  the 
county  of  Essex.  The  residence  of  the  mortgagor  is  in  dispute ;  but 
the  evidence,  I  think,  leaves  little  ground  for  diversity  of  opinion  as 
to  where  it  must  be  adjudged  to  have  been.  The  mortgagor's  hus- 
band died  in  1873.  At  the  time  of  his  death  his  residence  was  in 
Kearney  Township,  Hudson  County.  The  mortgagor,  after  his  death, 
continued  to  occupy  the  house  in  which  he  had  resided.  She  spent 
portions  of  each  winter  thereafter,  up  to  the  winter  of  1876  and 
1877,  in  the  city  of  Newark,  sometimes  taking  a  house,  and  at  others 
three  or  four  rooms,  but  keeping  her  dwelling  in  Kearney  open,  and 
she  and  her  family  going  there  whenever  they  chose.  ,  She  con- 
tinued to  reside  in  her  house  in  Kearney  during  the  whole  of  the 
winter  of  1877  and  1878,  and  on  the  day  Mr.  Hoag's  mortgage  was 
executed,  she  walked  from  her  house  in  Kearney  to  Xewark  to  exe- 
cute it.  If  it  be  taken  as  true  that,  when  she  executed  this  mort- 
gage, she  declared  Newark  to  be  the  place  of  her  residence  (the 
weight  of  the  evidence  does  not,  however,  I  think,  establish  the  fact 
that  such  a  declaration  was  made),  still,  I  cannot  see  how  this  fact 
can  affect  the  rights  of  the  complainant.  The  question  as  to  him 
is,  not  what  did  she  say  respecting  the  place  of  her  residence,  at  the 
time  she  executed  that  mortgage,  but  where,  in  fact,  did  she  then 
reside.  His  rights  must  be  controlled  by  the  fact,  and  not  by  her 
representation.  The  evidence  shows,  conclusively,  that  she  resided 
in  Hudson  County  when  all  three  mortgages  were  executed. 

It  is  clear,  then,  that  Mr.  Hoag's  mortgage  was  not  filed  in  tlio 
county  where  he  was  required  by  law  to  file  it,  in  order  to  give  it 
validity  against  the  creditors  of  the  mortgagor,  and  against  subse- 
quent purchasers  and  mortgagees  in  good  faith.  The  law  upon  this* 
point  is  plain  and  imperative.  Unless  a  mortgage  is  filed  in  tlie 
county  where  the  mortgagor  resides  (if  a  resident  of  this  State)  at 
the  time  of  its  execution,  or  the  mortgagee  tnkcs  immediate  posses- 
sion of  the  mortgaged  chattels,  and  continues  in  the  actual  and 
constant   possession   of   them,   it   is  absolutely  void   as  against   the 


754  SAYRE    V.   HEWES  [CHAP.   XI 

creditors  of  the  mortgagor,  and  as  against  subsequent  purchasers 
and  mortgagees  in  good  faith.  Jvev.  p.  709,  §§  39,  40;  De  Courcey  v. 
Collins,  6  C.  E.  Gr.  357. 

The  complainant  is  clothed  with  a  dual  character;  he  is  both  a 
creditor  and  a  subsequent  mortgagee.  He  is  not,  however,  a  sub- 
sequent mortgagee  in  good  faith.  He  knew,  when  he  took  his  mort- 
gage, that  a  prior  mortgage  had  been  given,  and  any  attempt  by 
him  to  dislodge  that  mortgage  from  its  position  of  superiority,  in 
consequence  of  the  failure  to  file  it  in  the  proper  county,  is,  in  equity, 
an  act  of  bad  faith.  His  mortgage  must  therefore  be  awarded  a 
position  subordinate  to  that  held  by  the  mortgage  to  Mr.  Hoag.  He 
stands,  however,  as  a  judgment  creditor,  on  a  much  higher  plane. 
The  Statute  makes  an  imjiortant  distinction  between  creditors  and 
subsequent  purchasers  or  mortgagees.  Purchasers  or  mortgagees,  to 
be  in  a  position  to  avail  themselves  of  an  omission  by  an  antecedent 
mortgagee,  must  have  acted  without  notice  of  the  rights  of  the 
holder  of  the  antecedent  security;  but  not  so  with  creditors.  A 
creditor  may  know  that  an  antecedent  mortgage  has  been  given, 
yet  if  it  is  not  filed  according  to  the  requirement  of  the  Statute, 
and  he  obtains  a  judgment  and  procures  a  levy  to  be  made,  his  lien, 
by  force  of  the  Statute,  is  entitled  to  preference  in  payment.  This 
is  the  rule  plainly  prescribed  by  the  Statute.  Had  the  meaning  of 
the  Statute  ever  been  thought  to  be  open  to  doubt,  its  construction 
is  now  so  authoritatively  settled  as  to  be  no  longer  open  to  discussion 
in  this  court.  Williamson  v.  N.  J.  Southern  R.  R.  Co.,  2  Stew.  Eq. 
336;  s.  c.  1  Stew.  Eq.  278. 

To  what  extent,  then,  is  the  complainant  a  creditor?  Is  he  en- 
titled to  that  position  in  virtue  of  both  of  his  judgments,  or  only 
one?  The  judgment  he  holds  under  assignment  from  Albert  H. 
HoAves  does  not  seem  to  be  open  to  any  valid  objection.  It  was 
founded  on  a  just  debt,  actually  existing  at  the  time  it  was  confessed. 
The  defendant  Hoag  cannot  impeach  the  complainant's  title  because 
he  paid  nothing  for  it.  The  judgment  creditor  had  an  unquestion- 
able right  to  assign  it,  with  or  without  a  consideration,  just  as  he 
pleased.  That  is  a  matter  which  concerned  him  alone.  The  fact 
that  the  assignment  was  gratuitous,  is  only  important  as  it  may  serve 
to  show  whether  the  foundation  of  the  judgment  was  honest  or 
fraudulent.  Under  the  evidence,  there  can  be  no  doubt  that  it  is 
supported  by  a  just  debt. 

As  already  intimated,  the  complainant's  right  to  occupy  the  posi- 
tion of  a  judgment  creditor,  as  against  other  lien-holders,  under 
the  judgment  confessed  to  himself,  has  little  to  support  it  in  a  court 
of  equity.  Is  he  a  creditor  in  the  sense  in  which  that  term  is  used 
in  this  Act  ?  It  is  certain  that  no  debt  was  due  to  him  for  which  he 
could  have  maintained  an  action.  At  the  time  of  his  recovery,  he  had 
no  legal  or  just  cause  of  action  against  the  defendant.  At  common 
law,  a  judgment  may  be  confessed  to  secure  a  debt  to  be  subsequently 


SECT.   V]  SAYRE    V.    HEWES  755 

created,  but  suppose  the  consideration  promised,  is  never  furnished, 
would  a  court  of  equity  permit  the  judgment  to  be  collected,  or  give 
such  a  judgment  creditor  a  superior  position  against  an  unfiled 
antecedent  mortgage,  the  existence  of  which  was  known  to  him  when 
he  obtained  his  judgment? 

Besides,  I  think  I  am  bound  to  consider  the  doctrine  as  settled,  so 
far  at  least  as  this  court  is  concerned,  that  a  judgment  on  bond  and 
warrant  of  attorney,  under  our  Statute,  can  only  be  entered  for  a 
debt  actually  existing  at  the  time  of  its  entry,  and  that  a  simple 
liability  as  indorser  or  surety  does  not  constitute  such  a  debt.  "  It 
is  an  abuse  of  language  to  say,"  says  Chancellor  Halsted,  "  that  be- 
cause I  indorse  your  note  to-day,  payable  three  months  hence,  to  be 
used  by  you,  you  are  indebted  to  me  to-day  for  the  amount  of  it." 
Blackwell  v.  Rankin,  3  Hal.  Cli.  160.  But  the  decisive  authority 
on  this  point  is  the  judgment  of  the  Court  of  Errors  and  Appeals, 
in  Clapp  V.  Ely,  3  Dutch.  555.  It  will  be  remembered  that,  in  that 
case,  it  was  finally  held,  by  a  divided  court,  it  is  true,  after  repeated 
and  exhaustive  discussion  by  counsel  as  able  as  any  that  ever  adorned 
the  bar  of  this  State,  and  after  the  best  consideration  that  could 
be  given  by  the  court  to  any  case,  that  a  valid  judgment  could  not 
be  entered,  under  our  Statute  regulating  the  recovery  of  judgments 
by  confession  on  bond  and  warrant  of  attorney,  to  secure  future 
advances,  or  a  debt  to  be  subsequently  created.  A  single  quotation 
from  the  masterly  opinion  of  Chief  Justice  Green  will  present  the 
important  ruling  of  that  case,  which,  I  think,  must  control  this.  He 
says,  "  Under  the  law  of  this  State,  no  judgment  by  confession  can 
be  entered,  except  for  a  demand  founded  on  a  legal  consideration, 
and  for  a  debt  justly  due  and  owing  at  the  time  of  the  entry  of  the 
judgment."  These  considerations,  I  think,  effectually  dispose  of  the 
complainant's  claim  to  be  regarded  as  a  judgment  creditor,  as  against 
the  other  lien-holders,  in  respect  to  the  judgment  confessed  to  him- 
self. 

But  if  it  were  possible  to  hold  that  the  complainant  was  entitled 
to  be  treated  as  the  holder  of  a  valid  security  for  future  advances, 
it  is  not  perceived  how  that  would  give  him  the  least  advantage  in 
this  controversy.  The  general  rule  in  respect  to  such  securities  is 
well  established.  They  are  only  entitled  to  priority  over  subsequent 
encumbrances  to  the  extent  of  the  sums  actually  advanced  prior  to 
actual  notice  of  the  subsequent  encumbrance.  Ward  v.  Cook,  2  C. 
E.  Gr.  93;  Kline  v.  McGuckin,  9  C.  E.  Gr.  411.  Here  nothing,  up 
to  this  time,  has  been  advanced,  and  the  complainant  cannot,  there- 
fore, in  equity,  lay  claim  to  the  rights  of  a  creditor. 

This  disposes  of  the  case  so  far  as  it  involves  merely  the  rights 
of  the  complainant  and  Mr.  Hoag,  and  without  reference  to  the  rights 
of  Mr.  Fisher.  But  his  rights  must  also  be  considered.  He  took 
his  mortgage  with  notice  that  a  prior  mortgage  had  been  given  to 
Mr.  Hoag,  and  he  must,  therefore,  as  between  Hoag  and  himself, 


756  SAYRE    V.    HEWES  [CHAP.   XI 

take  the  subordinate  position.  But  he  and  complainant,  as  between 
themselves,  occupy  equal  rank;  the  judgment  of  the  one,  and  the 
mortgage  of  the  other,  wpre  recovered  and  filed  on  the  same  day. 
So  that  the  relative  positions  of  the  several  parties  are  as  follows  : 
The  complainant  and  Fisher,  as  between  themselves,  hold  concurrent 
liens,  but  Hoag  stands  prior  to  Fisher  as  between  Fisher  and  him- 
self, and  the  complainant,  as  between  Hoag  and  himself,  stands  prior 
to  Hoag.  In  this  condition -of  affairs,  it  is  impossible  to  give  the 
complainant  the  full  benefit  of  the  superiority  of  his  position  over 
Hoag,  without  advancing  him  to  the  front  against  everybody.  The 
fact  that  the  complainant's  position  is  superior  to  that  of  Hoag,  and 
that  Fisher's  is  subordinate  to  that  held  by  Hoag,  raises  the  com- 
plainant above  Fisher  as  well  as  Hoag.  Where  a  third  encumbrancer 
acquires  a  right  of  priority  as  against  the  first,  but  the  act  or  omis- 
sion from  which  such  right  flows  does  not  change  his  relative  position 
towards  the  second,  yet,  as  it  is  impossible  to  put  him  in  advance 
of  the  first,  without  also  advancing  him  over  the  second,  his  lien 
must,  of  necessity,  be  advanced  to  the  first  position  as  against  both 
the  first  and  second  encumbrances.  Clement  v.  Kaighn,  2  McCart.  47. 
The  decree  will  declare  the  liens  of  the  parties  to  stand  in  the 
following  order :  The  complainant  shall  be  first  paid  the  amount 
due  on  the  judgment  assigned  to  him  by  Albert  H.  Hewes;  the  de- 
fendant Hoag  shall  next  be  paid  the  amount  due  on  his  mortgage; 
and,  lastly,  Fisher  shall  be  paid  the  amount  due  on  his  mortgage. 
If  a  surplus  remains,  it  must  be  brought  into  court  to  await  the 
determination  of  the  question  whether  the  complainant  or  Mrs.  Hewes 
is  entitled  to  it. 

On  appeal  from  a  decree  advised  by  the  Vice-Chancellor,  and  re- 
ported in  8ayre  v.  Hewes,  5  Stew.  Eq.  652. 

On  the  3d  of  December,  1877,  the  appellant,  Hoag,  obtained  a 
chattel  mortgage  on  the  goods  in  question.  Tliis  mortgage  was  not 
recorded  in  the  proper  county;  it  was  to  secure  $2,150.  On  the 
14th  of  February,  1878,  Frederick  Fisher,  having  knowledge  of  the 
prior  mortgage,  took  a  second  mortgage  on  the  same  property  to 
secure  $1,160.  Edward  Sayre  holds  a  judgment  by  confession  against 
the  mortgagor  for  $6,000  debt  and  $4  costs,  which  was  entered  on 
the  27th  of  February,  1878.  Execution  on  this  judgment  was  duly 
taken  out  and  levied. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  I  agree  with  the  Yice-Chancellor  in  his  settle- 
ment of  the  disputed  facts  in  this  case,  but  it  seems  to  me  that  an 
error  has  crept  into  the  decree  with  respect  to  the  marshalling  of  the 
encumbrances.  These  liens  are  of  this  character:  the  mortgage 
first  in  date  is  held  by  the  appellant,  Hoag;  then  comes  a  mortgage 
held  by  Frederick  Fisher,  one  of  the  defendants;  and  lastly  is  the 
judgment  of  the  defendant  Sayre.     This  first  mortgage  was  not  re- 


SECT.   V]  SAYRE    V.    HEWES  757 

corded  in  the  proper  county,  and  therefore  is  subordinate  to  the 
judgment,  but  it  is  paramount  to  the  second  mortgage,  which  was 
taken  with  knowledge  of  the  existence  of  this  first  lien.  In  this 
state  of  things,  the  decree  places  the  judgment  and  the  first  mort- 
gage, by  way  of  preference,  before  the  second  mortgage.  This,  as 
it  seems  to  me,  is  unjust  and  inadmissible. 

Upon  what  possible  princiijlc  is  the  result  in  this  case  to  be  justi- 
fied? Fisher,  when  he  took  his  mortgage,  knew  that  there  was  an 
antecedent  mortgage  on  the  same  property,  securing  the  sum  of 
$2,150,  with  interest.  He  had  his  own  mortgage  duly  recorded, 
so  that  it  became  incontestably  the  second  legal  lien;  in  this  position 
of  affairs  this  judgment  is  entered,  and  he  at  once  finds  himself, 
without  any  fault  on  his  part,  degraded  from  the  position  of  a  second 
encumbrancer  to  that  of  a  third  encumbrancer,  and  instead  of  the 
mortgaged  property  being  subject  to  a  claim  prior  to  his  own  of  but 
$2,150,  it  is  subject  to  paramount  claims  which  amount  to  the  sum 
of  $5,150.  If  such  a  principle  be  correct,  it  does  not  appear  that 
any  person,  under  any  circumstances,  can  take  a  second  or  other 
subordinate  mortgage  upon  property,  without  ])utting  his  interests 
in  the  utmost  jeopardy.  Under  the  prevalence  of  such  a  rule  of  law, 
a  subsequent  encumbrancer  would  be  obliged  to  see  that  the  status 
of  the  primary  encumbrance  was,  in  all  respects,  unexceptionable, 
under  penalty,  if  a  flaw  should  be  detected,  of  having  bis  lien  super- 
seded by  every  judgment  that  might  be  entered  at  a  later  date.  Such 
a  rule  would  be  as  inexpedient  as  it  would  be  unjust. 

I  cannot  but  think  that  any  one  who  will  look  carefully  into  the 
subject  will  perceive  that  no  rule  applicable  to  such  a  juncture  as  this 
can  be  admissible  that  is  not  founded  on  the  theory  of  leaving  the 
second  mortgagee  in  the  position  originally  acquired  by  him,  without 
respect  to  the  neglects  or  shortcomings  of  the  holder  of  the  previous 
mortgage  or  the  subsequent  judgments  of  creditors.  Viewed  in  this 
aspect,  this  would  be  the  result:  the  judgment  creditor  Avould,  in 
the  marshalling  of  these  liens,  take  priority  over  the  first  mortgage; 
as  between  the  judgment  and  that  mortgage,  the  former  must  be 
first  paid.  But  with  respect  to  the  second  mortgage,  the  judgment 
creditor,  as  such,  has  no  claim  to  stand  first,  his  only  claim  in  that 
regard  being  his  right  to  stand  in  the  shoes  of  the  first  mortgagee, 
and  assert  all  the  privileges  incident  to  that  position.  But  he  can 
exact  nothing  further  than  such  privileges;  he  can  legally  say  that 
he  has  the  paramount  lien  on  the  ]>roperty  to  the  extent  of  the  sum 
secured  by  the  first  mortgage;  but  he  cannot  legally  say  that,  with 
respect  to  the  second  mortgagee,  he  has  any  paramount  lien  beyond 
this.  ISTo  additional  burden  can  be  put  u])on  the  land  to  the  detri- 
ment of  the  second  mortgagee.  If  the  judgment  be  for  a  sum  greater 
than  that  secured  by  the  first  mortgage,  then,  by  right  of  representa- 
tion, such  judgment  will  constitute  the  first  lien  to  the  full  extent, 
and  no  further,  of  the  first  mortgage;  if  it  be  for  a  less  sum  than 


758  SAYRE    V.    HEWES  [CHAP.   XI 

the  first  mortgage,  it  will  take  precedence  and  consume  the  first 
mortgage  to  that  extent  only.  It  will  be  observed  that  by  these 
adjustments  the  priority  of  the  first  mortgage,  with  regard  to  the 
second  mortgage,  will  be  exhausted,  either  partially  or  wholly,  so 
that,  to  the  extent  of  such  exhaustion,  it  will  be  postponed  to  the 
second  mortgage. 

The  doctrine  thus  propounded  is  but  the  development  of  the  prin- 
ciple maintained  and  acted  an  in  Clement  v.  Kaighn,  2  McCart.  48. 
In  that  case  there  was  a  judgment  without  an  execution;  then  a 
mortgage,  and  then  judgments  on  which  executions  had  been  taken 
out.  These  latter  judgments  were  entitled  to  precedence  over  the  first, 
but  were  subordinate  to  the  mortgage.  Chancellor  Green  decided 
that  the  first  judgment  on  the  mortgaged  premises,  by  reason  of  the 
failure  to  sue  out  execution  upon  it,  should  be  postponed  to  the  en- 
cumbrance of  the  junior  judgments,  and,  as  an  inevitable  consequence, 
that  it  should  be  postponed  to  the  mortgage  which  was  prior  to  the 
junior  judgments,  and  whose  priority  w^as  not  to  be  affected  by  any 
laches  of  the  holder  of  such  prior  judgment. 

In  my  opinion,  the  decree  in  this  case  should  be  modified  so  as  to 
direct  the  payment  of  these  encumbrances  in  this  order,  viz. :  first, 
the  judgment  of  Sayre  to  the  amount  secured  by  the  first  mortgage; 
second,  the  payment  of  the  residue  of  such  judgment  and  the  second 
mortgage,  pari  passu,  as  they  were  concurrent  liens,  being  entered 
on  the  same  day;  third,  the  payment  of  the  first  mortgage. 

DixoN,  J.,  dissenting. 

I  agree  with  the  conclusions  which  the  Vice-Chancellor  has  reached 
upon  the  facts. 

But  I  dissent  from  the  legal  rule  by  which  he  fixes  the  order  of 
priority,  for  I  do  not  think  it  necessary  to  advance  the  complainant 
Sayre  to  the  front  against  everybody,  in  order  to  give  him  the  full 
benefit  of  his  superiority  to  Hoag. 

Nor  do  I  assent  to  the  rule  laid  down  in  the  opinion  just  read, 
since  I  see  no  reason  for  regarding  the  complainant  as  substituted  in 
the  stead  and  rights  of  Hoag  as  against  Fisher,  merely  because  Hoag 
failed  to  comply  with  the  registry  laws.  The  effect  of  non-compliance 
with  those  laws  is  declared  by  themselves  to  be,  not  that  the  rights 
of  him  in  default  shall  be  transferred  to  the  subsequent  encum- 
brancers, but  that  his  claim  shall  be  void  as  to  them. 

Therefore,  if  there  be  three  encumbrancers,  A,  B  and  C,  in  the 
order  of  time,  and  A's  lien  be  prior  to  B's,  and  B's  to  C's,  but,  for 
A's  omission  to  properly  register  his  lien,  it  is  void  as  to  C's,  then 
the  fund  should  be  disposed  of  as  follows :  — 

1.  Deduct  from  the  xvliole  fund  the  amount  of  B's  lien,  and  apply 
the  balance  to  pay  C.  This  gives  C  just  what  he  would  have  if  A 
had  no  existence. 

2.  Deduct  from  the  whole  fund  the  amount  of  A's  lien,  and  apply 
the  balance  to  pay  B.     This  gives  B  what  he  is  entitled  to. 


SECT.   V]  NOTE   ON   THE   TORRENS   SYSTEM  759 

3.  The  balance  remaining  after  these  payments  are  made  to  B 
and  C  is  to  be  applied  to  A's  lien. 

To  illustrate :  Suppose  the  fund  to  be  $5,000 ;  A's  lien  to  be  $3,000 ; 
B's  lien  to  be  $4,000,  and  C's  lien  to  be  $2,000.  Then,  C  receives 
$5,000,  less  $4,000  =  $1,000;  B  receives  $5,000,  less  $3,000  =  $2,000; 
A  receives  $5,000,  less  ($1,000  +  $2,000),  =  $2,000. 

Or  suppose  the  fund  to  be  $5,000,  and  each  of  these  encumbrances 
to  be  $5,000;  then  it  will  appear  that  A,  the  first  in  time,  will  take 
it  all;  since,  except  for  the  registry  laws,  he  would  clearly  be  entitled 
to  it,  and  the  registry  laws  simply  prevent  his  taking  anything  by 
which  C's  security  may  be  lessened.  But  C's  security  was  nothing 
at  the  beginning,  for  B's  prior  lien  covered  the  whole  fund;  and  C, 
therefore,  has  no  right  by  which  A's  claim  can  be  impaired. 

Where  B's  and  C's  claims  are  concurrent  in  time  and  lien,  but 
A  is  prior  to  B,  and  void  as  to  C  (as  in  the  present  case),  the  distribu- 
tion should  be  as  follows :  — 

1.  Divide  the  whole  fund  in  the  proportion  of  B's  and  C's  claims, 
and  give  to  C  his  proportion.     Thus  A  is  ignored  in  fixing  C's  rights. 

2.  Deduct  from  the  whole  fund  the  amount  of  A's  lien,  and  apply 
the  balance  to  B's  claim. 

3.  The  balance  remaining  after  both  payments  goes  to  A. 

By  applying  these  rules  to  the  case  before  us,  it  will  be  seen  that, 
in  my  judgment,  Fisher  alone  is  injured  by  the  decree  below;  but 
as  he  is  not  a  party  to  this  appeal,  the  decree  cannot  be  changed 
here  for  his  sake,  and  therefore,  I  think,  should  be  affirmed. 

For  affirmance  —  Dixon  —  1. 

For  reversal  —  Beasley,  C.  J.,  Depue,  Knapp,  Magie,  Pabker, 
Reed,  Scudder,  Van  Syckel,  Clement,  Cole,  Dodd,  Green  — 12. 


Note  on  the  Torrens  System.  —  "As  distinguished  from  the  system  of  re- 
cording; the  evidences  of  title,  considered  in  the  preceding  sections,  South 
Australia  in  1858  enacted,  on  the  initiative  of  Sir  Robert  Torrens,  a  system, 
somewhat  analogous  to  that  of  several  continental  countries,  for  the  registra- 
tion of  titles  themselves.  This  Torrens  System  so-called  was  generally 
adopted  in  Australia  and  in  varying  forms  is  now  in  use  in  several  of  the 
United  States  and  to  a  limited  extent  in  England.  The  general  purpose 
of  the  system  is  to  facilitate  the  sale  or  pledge  of  lands  by  establishing  and 
maintaining  the  title  to  each  parcel  registered  so  that  its  exact  condition 
at  any  given  time  may  be  readily  seen  by  reference  to  a  single  document 
of  record.  In  this  country  the  original  registration  is  a  voluntary'  and  judicial 
proceeding,  either  in  the  regular  courts,  as  in  Illinois,  or  in  a  special  tribunal, 
as  in  Massachusetts.  The  statutes  vary  in  detail.^  but  in  general  provide  a 
procedure  as  follows:  An  examination  and  report  on  the  title  by  an  official 
examiner;  service  of  notice  on  all  known  parties  in  interest  and  service  by 
publication  on  parties  unknown;  a  hearing  or  trial  of  issues  then  presented; 
and  a  decree  which  shall  be  binding  on  all  the  world  after  a  short  period 
for  appeal  or  review  —  thirty  days  in  Massachusetts,  sixty  in  Minnesota,  two 
years  in  Illinois  —  which  decree  is  the  basis  for  the  recording  of  a  certificate 
of  title  and  the  delivery  of  a  duplicate  certificate  to  the  petitioner. 


760  NOTE   ON   THE   TORRENS    SYSTEM  [CHAP.   XI 

" '  The  basic  principle  of  this  system  is  the  registration  of  the  title  of  land, 
instead  of  registering,  as  the  old  system  requires,  the  evidences  of  such  title. 
In  the  one  case  only  the  ultimate  fact  or  conclusion  that  a  certain  named 
party  has  title  to  a  particular  tract  of  land  is  registered,  and  a  certificate 
thereof  delivered  to  him.  In  the  other,  the  entire  evidence,  from  which 
proposed  purchasers  must,  at  their  peril,  draw  such  conclusion,  is  registered. 
Necessarily  the  initial  registration  of  title  —  that  is,  the  conclusive  establish- 
ment of  a  starting  point  binding  upon  all  the  world  —  must  rest  upon  judicial 
proceedings.'    Per  Start,  C.  J.,  in  State  v.  West  jail,  85  Minn  437,  438  (1902). 

"All  subsequent  transfers  or  incumbrances,  whether  voluntary  or  involun- 
tary, are  effected  by  the  issue  of  a  new  certificate  or  by  suitable  notation 
upon  the  old  certificate  refening  to  the  instruments  of  conveyance,  which 
are  filed  but  not  spread  upon  the  records.  Any  doubt  as  to  the  effect  of  a 
document  of  title  presented  for  registration  is  settled  by  the  court  or  its 
officials.  In  all  cases  the  operative  act  as  to  title  is  that  of  registration  and  no 
title  can  be  obtained  by  prescription  or  adverse  possession. 

"  Generally,  by  special  assessment  on  each  registration,  a  fund  is  provided 
from  which  any  one  improperly  deprived  of  an  interest  in  the  land  by  the 
original   registration   or  by   subsequent  transfer  may   obtain   indemnity. 

"  The  constitutionality  of  the  statutes  in  this  country  has  not  been  passed 
upon  by  the  Supreme  Court  of  the  United  States,  nor  has  the  validity  of  many 
provisions  been  adjudicated  in  the  State  courts.  The  Illinois  act  of  1895 
was  declared  unconstitutional  by  the  State  court  because  it  delegated  judicial 
functions  to  the  register,  a  ministerial  officer,  in  the  determination  of  owner- 
ship of  land  on  the  initial  registration.  People  v.  Chase  165  111.  527  (1897). 
An  amended  law,  passed  in  1897,  has  been  upheld  as  to  this  point  and  as  to 
its  general  provisions.  People  v.  Simon,  176  111.  165  (1898).  An  act  passed 
in  Ohio  in  1896  was  held  invalid  as  permitting  the  taking  of  property 
without  due  process  of  law  because  no  notice  except  by  publication  was  re- 
quired except  as  to  parties  whom  the  applicant  might  choose  to  name  in  his 
petition.  The  provision  for  indemnity  from  an  insurance  fund  was  held  not 
to  be  a  valid  substitute.  State  v.  Gwilbert,  56  Oh.  St.  575  (1897).  The 
Massachusetts  act  of  1898  was  upheld  in  a  petition  for  a  writ  of  prohibition 
by  a  majority  of  the  court  in  Tyler  v.  Judges  of  the  Court  of  Registration, 
175  Mass.  71  (1900).  The  Supreme  Court  of  the  United  States  refused  to 
take  jurisdiction  of  the  case  on  wi'it  of  error  because  it  was  not  brought  by 
one  who  had  been  deprived  of  property  under  the  law.  179  U.  S.  405  (1900). 
The  general  system  as  adopted  in  Minnesota  has  there  been  held  constitutional. 
State  V.  Westfall,  85  Minn.  437  (1902)."  6  Gray,  Cas.  on  Prop.,  2d  ed.,  pp. 
380-381.  See  Drake  v.  Eraser,  179  N.  W.  (Neb.)  393.  Compare  Shevlin- 
Mathieu  Lumber  Co.  v.  Fogarty,  130  Minn.  456. 

"  The  Torrens  System  of  land  registration  would  seem  to  be  an  ideal 
method  of  securing  stability  in  ownership  of  realty.  The  old  system  of 
recording  merely  transfers  left,  as  every  conveyancer  knows,  the  security  of 
land  transactions  often  in  doubt,  and  the  purchaser  at  the  mercy  of  some 
forgotten  heir  or  neglected  dower  interest.  All  this  is  done  away  with  by 
the  decree  of  court,  after  due  notice  and  other  fomialities,  declaring  title  to 
be  in  the  registrant,  and  all  other  claims  barred  forever.  The  state,  to  be 
sure,  ordinarily  guarantees  out  of  funds  supplied  by  fees  that  claimants 
barred  through  negligence  or  omission  of  the  registrar  shall  be  indemnified. 
But  such  mistakes  do  not  affect  the  title. 

"  The  expense  of  the  system,  however,  renders  resort  to  it  bj'  no  means 
universal,  and  indeed  for  many  titles  it  is  unnecessary.  It  seems  to  be  most 
serviceable  in  three  classes  of  cases.  First:  Certain  classes  of  city  property 
which  change  hands  frequently  or  are  often  mortgaged.  The  registered  title 
passes  easily  from  hand  to  hand,  and  also  may  be  as  liquid  a  security  as  a 


SECT.    V]  NOTE   ON   THE   TORRENS   SYSTEM  761 

stock  certificate.  These  titles  it  is  cheaper  ami  more  expedient  to  register, 
and  thus  to  avoid  the  expense  and  delay  of  a  new  search  by  each  careful  pur- 
chaser who  is  unwilling  to  rely  on  any  lawyer  but  his  own.  Second:  Land 
constantly  the  prey  of  vague,  shadowy  claims  of  easements,  such  as  the 
familiar  local  assertion  of  rights  of  way  over  seashore  property  to  the  ocean. 
By  registration  these  incumbrances  are  dismissed  or  at  least  well  defined. 
Third:  Certain  country  property  where  it  is  desirable  accurately  to  fix 
boundaries.  Much  of  the  work  of  the  registrar  lies  here  where,  owing  to  the 
introduction  of  new  linos  of  street  railways  or  other  improvement-s,  land 
hitherto  vacant  and  of  little  value  has  begun  to  sell  by  the  foot  instead  of 
by  the  acre.  Nevertheless,  much  land  will  not  find  its  way  to  the  registrar.  — 
for  instance,  residential  rural  or  urban  property  which  seldom  changes  hands. 
Here  it  is  cheaper  and  often  as  safe  to  rely  on  one's  own  lawj-er."  32  Harv. 
L.  Rev.  297. 


CHAPTER    XII 

ESTOPPEL  BY  DEED  i 

LiTT.  §  446.  Also,  these  words  which  are  commonly  put  in  such 
releases,  scilicet  (quce  quovismodo  in  futurum  habere  potero)  are  as 
voide  in  law;  for  no  right  passeth  by  a  release,  but  the  right  which 
the  releasor  hath  at  the  time  of  the  release  made.  For  if  there  be 
father  and  sonne,  and  the  father  be  disseised,  and  the  sonne  (living 
his  father)  releaseth  by  his  deed  to  the  disseisor  all  the  right  which 
he  hath  or  may  have  in  the  same  tenements  without  clause  of  war- 
rantie,  &c.  and  after  the  father  dieth,  &c.  the  sonne  may  lawfully 
enter  upon  the  possession  of  the  disseisor,  for  that  hee  had  no  right 
in  the  land  in  his  father's  life  (pur  ceo  que  il  n'avoit  droit  en  la  terre 
en  la  vie  son  pier)  but  the  right  descended  to  him  after  the  release 
made  by  the  death  of  his  father,  &c. 

Co.  Lit.  265  a.  Wote,  a  man  may  have  a  present  right,  though  it 
cannot  take  effect  in  possession,  but  in  futuro. 

As  hee  that  hath  a  right  to  a  reversion  or  remainder,  and  such 
a  right  he  that  hath  it  may  presently  release.  But  here  in  the  case 
which  Littleton  puts,  where  the  sonne  release  in  the  life  of  his  father, 
this  release  is  void,  because  he  hath  no  right  at  all  at  the  time  of  the 
release  made,  but  all  the  right  was  at  that  time  in  the  father;  but 
after  the  decease  of  the  father,  the  sonne  shall  enter  into  the  land 
against  his  owne  release. 

The  baron  makes  a  lease  for  life  and  dieth,  the  release  made  by 
the  wife  of  her  dower  to  him  in  reversion  is  good,  albeit  shee  hath  no 
cause  of  action  against  him  in  prcesenti. 

"  Without  clause  of  ivarrantie."  For  if  there  bee  a  warrantie 
annexed  to  the  release,  then  the  sonne  shall  be  barred.  For  albeit 
the  release  cannot  barre  the  right  for  the  cause  aforesaid,  yet  the 
warranty  m^y  rebutt,  and  barre  him  and  his  heires  of  a  future  right 
which  was  not  in  him  at  that  time:  and  the  reason  (which  in  all 
cases  is  to  be  sought  out)  wherefore  a  warrantie  being  a  covenant 
reall  should  barre  a  future  right,  is  for  avoiding  of  circuitie  of  action 
(which  is  noffavoured  in  law)  ;  as  he  that  made  the  warrantie  should 
recover  the  land  against  the  ter-tenant,  and  he  by  force  of  the  war- 
rantie to  have  as  much  in  value  against  the  same  person. 

1  On  the  subject  of  this  chapter  see  Rawle,  Covenants  for  Title,  5th  ed., 
c.  11. 

762 


DOE   d.    CHRISTMAS    V.    OLIVER  763 


DOE  d.  CHRISTMxVS  and  Others  v.  OLIVER 
10  B.  &  C.  181.    1829. 

Bayley,  J.^  This  case  depended  upon  the  effect  of  a  fine  levied 
hy  a  contingent  remainder-man  in  fee.  Ann  Mary,  the  wife  of 
Joseph  Brooks  Stephenson,  was  entitled  to  an  estate  in  fee  upon  the 
contingency  of  her  surviving  Christian,  the  widow  of  Thoopliikis 
Holmes;  and  she  and  her  husband  conveyed  the  premises  to  Thomas 
Chandless  for  ninety-nine  years,  and  levied  a  fine  to  support  that 
conveyance.  Christian,  the  widow,  died,  leaving  Mrs.  Stephenson 
living,  so  that  the  contingency  upon  which  the  limitation  of  the  fee 
to  Mrs.  Stephenson  depended,  happened,  and  this  ejectment  was 
brought  by  the  assignees  of  the  executors  of  Thomas  Chandless,  in 
whom  the  term  for  ninety-nine  years  was  vested.  It  was  conceded 
upon  the  argument  that  the  fine  was  binding  upon  Mr.  and  Mrs. 
Stephenson,  and  all  who  claimed  under  them  by  estoppel ;  but  it  Avas 
insisted  that  such  fine  operated  by  way  of  estoppel  only;  that  it  there- 
fore only  bound  parties  and  privies,  not  strangers;  that  the  defend- 
ant, not  being  proved  to  come  in  under  Mr.  and  Mrs.  Stephenson, 
was  to  be  deemed  not  a  privy,  but  a  stranger;  and  that  as  to  him, 
the  estate  was  to  be  considered  as  still  remaining  in  Mr.  and  Mrs. 
Stephenson.  To  support  this  position,  the  defendant  relied  upon 
the  latter  part  of  the  judgment  delivered  by  me  in  Doe  dem.  Brune  v. 
Mariyn,  8  B.  &  C.  497;  and  that  part  of  the  judgment  certainly 
countenances  the  defendant's  argument  here.  The  reasoning,  how- 
ever, in  that  case,  is  founded  upon  the  supposition  that  a  fine  by  a 
contingent  remainder-man  operates  by  estoppel,  and  hy  estoppel  onh/; 
its  operation  by  estoppel,  which  is  indisputable,  was  sufficient  for  the 
purpose  of  that  decision :  whether  it  operated  by  estoppel  only,  or 
whether  it  had  a  further  operation,  was  quite  immaterial  in  that 
case;  and  the  point  did  not  there  require  that  investigation,  which 
the  discussion  in  this  case  has  made  necessary.  We  have,  therefore, 
given  the  point  the  further  consideration  it  required,  and  are  satis- 
fied upon  the  authorities,  that  a  fine  by  a  contingent  remainder-man, 
though  it  operates  by  estoppel,  does  not  operate  by  estoppel  only, 
but  that  it  has  an  ulterior  operation  when  the  contingency  happens; 
that  the  estate  which  then  becomes  vested  feeds  the  estoppel;  and 
that  the  fine  operates  upon  that  estate,  as  though  that  estate  had 
been  vested  in  the  cognizors  at  the  time  the  fine  was  levied. 

In  Rawlins  Case,  4  Co.  52,  Cartwright  demised  land,  not  his,  to 
Weston  for  six  years;  Rawlins,  who  owned  the  land,  demised  it  to 
Cartwright  for  twenty-one  years;  and  Cartwright  re-demised  it  to 
Rawlins  for  ten ;  and  it  was  resolved  that  the  lease  by  Cartwright, 
when  he  had  nothing  in  the  land,  was  good  against  him  by  conclusion; 

1  The  opinion  only  is  given. 


764  DOE   d.    CHRISTMAS    V.    OLIVER  [CHAP.   XII 

and  when  Rawlins  re-demised  to  him,  then  was  his  interest  hound 
by  the  conclusion;  and  when  Cartwright  re-demised  to  Rawlins,  now 
was  Rawlins  concluded  also.  Rawlins,  indeed,  is  bound  as  privy, 
because  he  comes  in  under  Cartwright;  but  the  purpose  for  which 
I  cite  this  case  is,  to  show  that  as  soon  as  Cartwright  gets  the  land, 
his  interest  in  it  is  bound.  In  Weale  v.  Lower,  Poll.  54,  a.d.  1672, 
Thomas,  a  contingent  remainder-man  in  fee,  leased  to  Grills  for  five 
hundred  years,  and  levied  a  fine  to  Grills  for  five  hundred  years, 
and  died.  The  contingency  happened,  and  the  remainder  vested  in 
the  heir  of  Thomas,  and  whether  this  lease  was  good  against  the  heir 
of  Thomas  was  the  question.  It  was  debated  before  Hale,  C.  J.,  and 
his  opinion  was,  that  the  fine  did  operate  at  first  by  conclusion, 
and  passed  no  interest,  but  bound  the  heir  of  Thomas ;  that  the  estate 
which  came  to  the  heir  when  the  contingency  happened  fed  the 
estoppel ;  and  then  the  estate  by  estoppel  became  an  estate  in  interest, 
and  of  the  same  effect  as  if  the  contingency  had  happened  before 
the  fine  was  levied ;  and  he  cited  Rawlins's  Case,  4  Coke,  53,  in  which 
it  was  held,  that  if  a  man  leased  land  in  which  he  had  nothing,  and 
afterwards  bought  the  land,  such  lease  would  be  good  against  him 
by  conclusion,  but  nothing  in  interest  till  he  bought  the  land ;  but 
that  as  soon  as  he  bought  the  land,  it  would  become  a  lease  in  interest. 
The  case  Avas  again  argued  before  the  Lord  Chancellor,  Lord  C.  J. 
Hale,  Wild,  Ellis,  and  Windham,  Justices,  and  they  all  agreed  that 
the  fine  at  first  inured  by  estoppel;  but  that  when  the  remainder 
came  to  the  conusor's  heir,  he  should  claim  in  nature  of  a  descent, 
and  therefore  should  be  bound  by  the  estoppel ;  and  then  the  estoppel 
was  turned  into  an  interest,  and  the  cognizee  had  then  an  estate  in 
the  land.  In  Trevivan  y.  Lawrence,  6  Mod.  258 ;  Ld.  Raym.  1051, 
Lord  Holt  cites  39  Ass.  18,  and  speaks  of  an  estoppel  as  running 
upon  the  land,  and  altering  the  interest  of  it,  —  as  creating  an  in- 
terest in  or  working  upon  the  estate  of  the  land,  and  as  running 
with  the  land  to  whoever  takes  it.  In  Vick  v.  Edwards,  3  P.  Wms. 
372  (1735),  Lord  Talbot  must  have  considered  a  fine  by  a  contingent 
remainder-man  as  having  the  double  operation  of  estopping  the 
conusors  till  the  contingency  happened,  and  then  of  passing  the  es- 
tate. In  that  case,  lands  were  devised  to  A.  and  B.  and  the  survivor 
of  them,  and  the  heirs  of  such  survivor,  in  trust  to  sell :  the  master 
reported  that  they  could  not  make  a  good  title,  because  the  fee  would 
vest  in  neither  till  one  died.  On  exceptions  to  the  m^aster's  report. 
Lord  Talbot  held,  that  a  fine  by  the  trustees  would  pass  a  good  title 
to  the  purchaser  by  estoppel;  for  though  the  fee  were  in  abeyance, 
it  was  certain  one  of  the  two  trustees  must  be  the  survivor,  and  en- 
titled to  the  future  interest;  consequently,  his  heirs  claiming  under 
him  would  be  estopped  by  reason  of  the  fine  of  the  ancestor  to  say, 
quod  partes  finis  nihil  hahuerunt,  though  he  that  levied  the  fine  had 
at  the  time  no  right  or  title  to  the  contingent  fee.  And  the  next  day 
he  cited  Weale  v.  Lower.     Now,  whether  Lord  Talbot  were  right  in 


RIGHT   d.    JEFFREYS    V.    BUCKNELL  765 

treating  the  fee  as  in  abeyance,  and  the  limitation  to  the  survivor 
and  his  heirs  as  a  contingent  remainder  or  not,  it  is  evident  he  did 
so  consider  them;  and  he  must  have  had  the  impression  that  the  fine 
would  have  operated  not  by  estoppel  only,  but  by  way  of  passing  the 
estate  to  the  purchaser,  because,  unless  it  had  the  latter  operation 
as  well  as  the  former,  it  could  not  pass  a  good  title  to  the  purchaser. 

In  Fearne,  c.  6,  §  5  (edit.  1820,  p.  365),  it  is  said,  "  we  are  to  re- 
member, however,  that  a  contingent  remainder  may,  before  it  vests, 
be  passed  by  fine  by  way  of  estoppel,  so  as  to  bind  the  interest  which 
shall  afterwards  accrue  by  the  contingency;"  and  after  stating  the 
facts  in  Weale  v.  Lower,  he  says,  it  was  agreed  that  the  contingent 
remainder  descended  to  the  conusor's  heir;  and  though  the  fine 
operated  at  first  by  conclusion,  and  passed  no  interest,  yet  the  estoppel 
hound  the  heir;  and  that  upon  the  contingency,  the  estate  by  estoppel 
became  an  estate  in  interest,  of  the  same  effect  as  if  the  contingency 
had  happened  before  the  fine  was  levied. 

Upon  these  authorities  we  are  of  opinion  that  the  fine  in  this  case 
had  a  double  operation,  —  that  it  bound  Mr.  and  Mrs.  Stephenson  by 
estoppel  or  conclusion  so  long  as  the  contingency  continued;  Iiut  that 
when  the  contingency  happened,  the  estate  which  devolved  ujjon 
Mrs.  Stephenson  fed  the  estoppel;  the  estate  created  by  tlie  fine.  l)y 
way  of  estoppel,  ceased  to  be  an  estate  by  estoppel  only,  and  became 
an  interest,  and  gave  Mr.  Chandless,  and  those  having  right  under 
him,  exactly  what  he  would  have  had,  had  the  contingency  happened 
before  the  fine  was  levied.  Postea  to  the  plaintiff} 


RIGHT  d.  JEFFREYS  v.  BUCKNELL  axd  Two  Others 
2  B.  &  Ad.  278.     1831. 

Tins  case  was  argued  (hii'ing  the  last  term  by  Plail  for  tlic  ]il;iiii- 
tiffs,  and  Preston  for  the  defendants,  before  Lord  Tkntkkdex.  V.  J., 
LiTTLEDALE,  J.,  Taiinton,  J.,  and  Patteson,  J.  The  facts  of  the 
case,  the  arguments  urged,  and  the  authorities  citecl,  are  so  fully 
stated  and  commented  on  in  the  judgment  pronounced  by  the  court 
that  it  is  deemed  unnecessary  to  detail  tliem  here. 

Cur.  adv.  ruU. 

Lord  Te.nterden,  0.  J.,  in  the  course  of  tliis  term,  delivered  the 
judgment  of  the  court :  — 

This  case  came  on  upon  a  motion  to  enter  a  nonsuit.  At  the  trial 
before  the  Lord  Chief  Justice  Tindal.  at  the  Summer  Assizes  for  the 
County  of  Kent,   1S;]0,  it    :i|>i)c;irc(l    tliat    the  iiction   w:is  brought   to 

^  On  the  transfrr  of  contingent  roniaindrrs  and  contingent  rxecutorv  in- 
terests by  estoppel,  see  Smith  v.  Carroll.  280  Til.  1.S7;  DuBols  v.  JiKti/.  291  111. 
340,  348;   Kales,  Estates  and  Future  Interests,  2(1  eii.,  §§  321.  480." 


766  RIGHT   d.    JEFFREYS    V.    BUCKNELL  [CHAP.   XII 

recover  two  houses  at  Bromptou  in  the  parish  of  Chatham.  As  to 
one  the  learned  judge  was  of  opinion,  that  the  ejectment  would  not 
lie  for  want  of  a  notice  to  quit.  As  to  the  other,  there  was  a  verdict 
for  the  lessors  of  the  plaintiff,  subject  to  leave  to  enter  a  nonsuit. 
The  facts  proved  were,  that  Thomas  Jarvis  the  elder,  having  con- 
tracted to  purchase  the  premises,  was  let  into  possession  by  order  of 
the  Court  of  Chancery  on  the  29th  of  December,  1808;  and  being 
let  into  possession,  but  never  Jiaving  had  any  conveyance  executed 
to  him,  he  afterwards,  on  the  2d  of  October,  1820,  devised  them  to 
his  son  and  heir,  Thomas  Jarvis  the  younger.  Upon  his  father's 
death  the  son  entered,  and  on  the  21st  of  January,  1823,  he  mortgaged 
the  premises,  by  indentures  of  lease  and  release,  to  the  lessors  of  the 
plaintiff.  The  lease  and  release  were  in  the  common  form,  excepting 
that  in  the  latter  there  Avas  a  recital  that  the  said  Thomas  Jarvis  is 
legally  or  eqidtahly  entitled  to  the  several  messuages  or  dwelling- 
houses  conveyed,  and  in  the  covenant  for  title,  the  releasor  cove- 
nanted that  he  is  and  standeth  laAvfully  or  equitably,  rightfully, 
absolutely,  and  solely  seised  in  his  demesne  as  of  fee  of  and  in,  and 
otherwise  well  entitled  to  the  said  several  messuages  or  dwelling- 
houses,  &c.  On  the  1st  and  2d  of  April,  1824,  indentures  of  lease 
and  release,  under  the  contract  of  sale  in  1808,  were  executed  to 
Thomas  Jarvis  the  younger,  whereby  he  became  seised  of  the  legal 
estate  in  the  premises,  which  he  afterwards  conveyed  by  mortgage, 
for  a  valuable  consideration,  to  the  defendant  Henry  Bucknell. 
There  was  no  proof  that  Bucknell  had  any  notice  of  the  prior  mort- 
gage, and  upon  his  mortgage  all  the  title-deeds  were  delivered  to  him. 
In  this  action,  he  had  come  in  under  the  common  rule,  and  defended 
as  landlord;  the  other  defendants  were  the  tenants  in  possession. 

The  question  on  which  the  court  took  time  to  consider  was,  whether 
the  defendant,  claiming  under  the  mortgagor,  Thomas  Jarvis  the 
younger,  could  set  up  as  a  defence  against  the  lessors  of  the  plaintiff, 
fhe  legal  estate  acquired  by  him  since  their  mortgage.  And  it  has 
been  argued  for  them  that  he,  as  representing  the  mortgagor,  Thomas 
Jarvis,  is  estopped  from  doing  so;  and  for  this  purpose,  Co.  Lit. 
352  a;  Lit.  §  693;  and  the  cases  of  Bensley  v.  Burdon,  2  Sim.  &  Stu. 
519;  Helps  y.  Hereford,  2  B.  &  A.  242;  Goodtith  v.  Morse,  3  T.  R. 
365;  Goodfitle  v.  Bailey,  Cowp.  597;  Goodtitle  v.  Morgan  and  Others, 
1  T.  E.  755;  Doe  d.  Christmas  v.  Oliver,  10  B.  &  C.  181;  Trevivan 
V.  Laivrence,  1  Salk.  276;  2  Ld.  Raym.  1048,  s.  c. ;  and  Taylor  v. 
Needham,  2  Taunt.  278,  were  cited.  Of  these  cases  none  are  appli- 
cable to  the  point  in  question,  except  Good-title  v.  Morgan  and 
Bensley  v.  Burdon  (of  which  more  presently),  and  Helps  v.  Hereford 
and  Doe  v.  Oliver.  The  last  two  are  cases  of  estoppels,  arising  out 
of  fines  levied  before  any  interest  vested;  and  there  is  no  doubt  that 
a  fine  may  operate  by  way  of  estoppel,  but  the  present  is  not  the 
case  of  a  fine.  In  §  693,  Littleton,  speaking  with  reference  to  the 
doctrine  of  remitter,  says,  "  This  is  a  remitter  to  him,  if  such  taking 


RIGHT   d.    JEFFREYS    V.    BUCKXELL  767 

of  the  estate  be  not  by  deed  indented,  or  by  matter  of  record,  which 
shall  conclude  or  estop  him ;  "  and  in  Lord  Coke's  commentary  on 
this  passage,  a  deed  indented  is  distinguished  from  a  deed  poll  in 
this  particular  of  remitter,  for  the  deed  poll  is  only  the  deed  of  the 
feoffor,  donor,  and  lessor,  but  the  deed  indented  is  the  deed  of  both 
parties,  and,  therefore,  as  well  the  taker  as  the  giver  is  concluded. 
In  352  a.  Lord  Coke  divides  estoppels  into  three  sorts,  the  second  of 
which  he  thus  defines :  "  By  matter  in  writing,  as  hy  deed  indented, 
by  making  of  an  acquittance  by  deed  indented  or  deed  poll,  by  de- 
feasance by  deed  indented  or  deed  poll."  And  there  are  many  other 
authorities  to  show  that  estoppel  may  be  by  any  indenture  or  deed 
poll.  But  upon  this  rule  there  are  many  qualifications  and  excep- 
tions engrafted.  It  is  a  rule,  that  an  estoppel  should  be  certain  to 
every  intent,  and,  therefore,  if  the  thing  be  not  precisely  and  directly 
alleged,  or  be  mere  matter  of  supposal,  it  shall  not  be  an  estoppel; 
nor  shall  a  man  be  estopped  where  the  truth  appears  by  the  same 
instrument,  or  that  the  grantor  had  nothing  to  grant,  or  only  a  possi- 
bility; Co.  Lit.  352  b,  where  this  case  is  put:  ''An  impropriation 
is  made  after  the  death  of  an  incumbent,  to  a  bishop  and  his  succes- 
sors. The  bishop,  by  indenture,  demiseth  the  parsonage  for  forty 
years,  to  begin  after  the  death  of  the  incumbent.  The  dean  and 
chapter  confirmeth  it.  The  incumbent  dieth.  This  demise  shall  not 
conclude,  for  that  it  appeareth  that  he  had  nothing  in  the  impropria- 
tion till  after  the  death  of  the  incumbent."  This  passage  from  Co. 
Lit.  is  adopted  by  Ch.  B.  Comyns  in  his  Digest,  Estoppel  (E.  2). 
JSTow  in  the  case  at  bar  the  very  truth,  that  the  mortgagor,  Thomas 
Jarvis  the  younger,  had  only  an  equitable  interest,  is  partly  ad- 
mitted; for  the  recital  states  in  the  alternative,  that  he  is  lawfully 
or  equitably  entitled,  and  the  covenant  for  title  is  to  the  same  effect. 
At  all  events,  there  is  in  this  recital  a  want  of  that  certainty  of 
allegation  which  is  necessary  to  make  it  an  estoppel.  Lord  Holt 
lays  it  down  in  Salter  v.  Kidley,  1  Show.  59,  that  general  recital 
is  not  an  estoppel,  though  a  recital  of  a  particular  fact  is.  Aiul  upon 
this  the  judgment  of  the  Lord  Chancellor  in  the  recent  case  of  Bcn^sley 
V.  Burdon,  which  was  relied  upon  by  tlie  counsel  for  the  lessors  of 
the  plaintiff,  proceeded.  The  deed  of  release  in  that  case  recited,  that 
Francis  Tweddle  the  younger  was,  subject  to  his  father's  life  estate, 
seised  or  possessed  of,  or  well  entitled  to,  the  lands  and  tenements 
thereinafter  mentioned  in  reversion  or  remainder;  and  by  the  deed  he 
granted  and  released  this  remainder,  and  covenanted  that  be  was 
seised  of  it  for  an  indefeasible  estate  of  inheritance  The  present 
Master  of  the  Kolls,  then  Vice-Chancellor,  by  whom  this  case  was 
first  decided,  according  to  the  report  in  2  Sim.  <Sr  Stu.  511),  held,  that 
this  was -an  estoppel,  upon  the  general  grcuuid  that  it  was  a  deed  in- 
dented, and  that  the  nature  of  the  conveyance,  namely,  lease  and  re- 
lease, made  no  difference.    The  Lord  Chancellor  confirmed  this  judg- 


768  RIGHT   (1.    JEFFREYS    V.    BUCKNELL  [CHAP.   XII 

ment,  5  Russell's  Ch.  Rep./  but  put  it  on  this  solely,  that  it  was  an 
allegation  of  a  particular  fact,  by  which  the  party  making  it  was 
concluded.  That  case,  therefore,  greatly  differed  from  the  present, 
in  which  there  is  no  certain  precise  averment  in  the  deed  of  release  of 
any  seisin  in  T.  Jarvis  the  younger,  but  a  recital  only,  that  he  was 
legally  or  equitably  entitled.  We  think,  therefore,  that  this  recital 
does  not  operate  by  way  of  estoppel. 

We  are  of  opinion,  also,  that,  the  release  whereby  T.  Jarvis  granted, 
bargained,  sold,  aliened,  remised,  released,  &c.,  the  premises,  does 
not  by  mere  force  of  these  words  amount  to  an  estoppel.  Littleton 
lays  it  down,  §  446,  that  "  no  right  passeth  by  a  release,  but  the  right 
which  the  releasor  hath  at  the  time  of  the  release  made.  For  if 
there  be  father  and  son,  and  the  father  be  disseised,  and  the  son 
(living  his  father)  releaseth  by  his  deed  to  the  disseisor  all  the  right 
which  he  hath,  or  may  have,  in  the  same  tenements,  without  clause 
of  warranty,  &c.,  and  after  the  father  dietli,  kc,  the  son  may  lawfully 
enter  upon  the  possession  of  the  disseisor."  To  the  same  effect  is 
Wivel's  Case,  Hob.  45,  and  Perk.  §  65,  that  where  a  son  and  heir 
joins  in  a  grant  in  the  lifetime  of  his  father,  while  he  has  neither 
possession  nor  right  in  the  matter  granted,  the  grant  is  utterly  void, 
and  nothing  passes.  So  here,  if  the  release  pass  nothing  but  what 
the  releasor  lawfully  had,  and  he  had  no  legal  title  in  the  premises 
at  the  time  of  the  release  made,  those  who  claim  under  him  by  a 
subsequent  good  title  are  at  liberty  to  show  this;  and  there  is  no 
implied  estoppel,  as  appears  from  the  authorities  just  cited,  and  the 
Year  Books  49  Ed.  3,  14,  15;  45  Ass.  5;  46  Ass.  6;  and  Brook's 
construction  of  these  books  in  his  Abr.  tit.  Estoppel,  pi.  146 ;  10  Vin. 
Abr.,  Estoppel  (M). 

The  case  was  put  in  argument  on  another  ground  for  the  lessors 
of  the  plaintiff,  namely,  that  it  was  within  the  common  rule  that  a 
mortgagor  cannot  dispute  the  title  of  his  mortgagee.  Such  a  rule 
without  reference  to  the  technical  doctrine  of  estoppel,  undoubtedly  is 
to  be  met  with  as  laid  down  by  Lord  Holt,  in  Salkeld,  and  has  been 
often  recognized  in  modern  times.  But  we  are  of  opinion  that  it  does 
not  apply  to  the  present  case.  Here,  the  defendant  Bucknell  claims, 
as  a  purchaser  for  a  valuable  consideration  without  notice,  a  legal 
interest  which  was  not  in  T.  Jarvis  at  the  time  of  his  mortgage  to  the 
lessors  of  the  plaintiff,  and  T.  Jarvis  had  then  an  equitable  interest 
which  passed  to  them,  and  which  is  not  questioned,  nor  sought  to  be 
disturbed  by  the  defence  which  Bucknell  sets  up.  This  case  much 
resembles  that  of  Goodiitle  v.  Morgan,  where  a  second  mortgagee 
without  notice,  who  got  in  the  legal  title,  by  taking  an  assignment, 
from  a  trustee  and  the  mortgagor,  of  an  outstanding  term  assigned  to 
attend  the  inheritance,  Avas  holden  entitled  to  a  legal  preference 
against  the  first  mortgagee. 

1  This   citation    is   erroneous.     The   opinion    of   the    Lord   Chancellor   is 
found  in  8  L.  J.  Ch.  85. 


HOYT   V.    DIMON  .  769 

There,  as  here,  it  might  be  said  that  ho  was  bounfl  by  the  same 
conclusion  as  the  mortgagor,  and  should  not  question  the  right  of  the 
prior  mortgagee.  But  the  legal  title  prevailed  there,  and  so  we  think 
it  ought  here.  The  consequence  upon  the  whole  is,  the  rule  for 
entering  a  nonsuit  must  be  absolute.  Rule  absolute} 


HOYT    V.   DIMOX 

5  Day  (Conn.)  479.     1813. 

Motion  for  a  new  trial. 

This  was  an  action  of  disseisin,  for  a  parcel  of  land  in  Xewtown, 
The  defendant  pleaded  the  general  issue. 

On  the  trial,  the  plaintiff  claimed  title  to  the  demanded  premises, 
by  virtue  of  the  levy  of  an  execution  in  his  favour  against  one  Austin 
]Srichols;  which  levy  was  made  on  the  17th  of  April,  1810. 

The  defendant  claimed  title,  by  force  of  a  mortgage  deed  from 
Austin  Nichols  to  one  Philo  Norton,  dated  the  22d  of  September, 
1797.  This  deed  was  given  to  secure  the  payment  of  four  promissory 
notes,  of  fifteen  hundred  dollars  each,  one  of  which  was  made  payable 
in  one  year  after  the  date  and  execution  of  the  deed.  There  was  a 
regular  series  of  con\'eyances,  through  sundry  persons,  from  Norton 
to  the  defendant. 

It  also  appeared,  that  one  Daniel  Nichols  was  the  owner  of  the 
premises,  until  the  25th  of  September,  1797,  when  he,  by  deed,  con- 
taining the  usual  covenants  of  seisin  and  warranty,  conveyed  the 
same  to  Austin  Nichols;  and  that,  on  8th  of  January,  1798,  Austin 
Nichols,  by  an  absolute  deed,  conveyed  the  land  to  Norton. 

It  was  contended  in  behalf  of  the  plaintiff,  that  both  the  mortgage 
deed,  and  the  absolute  deed  from  Austin  Nichols  to  Norton,  were 
given  for  the  purpose  of  enabling  him  to  avoid  the  claims  of  his 
creditors;  and  were,  therefore,  void,  by  the  provisions  of  the  statute 
against  fraudulent  conversances. 

The  plaintiff,  also,  contended,  that  if  the  evidence  of  fraud  ex- 
hibited on  the  trial,  in  relation  to  the  execution  of  these  deeds,  was 
insufficient  to  shew,  that  the  mortgage  deed  was  fraudulent;  yet,  if 
it  was  sufficient  to  prove,  that  the  subsequent  absolute  d(>ed  Avas  void, 
it  destroyed  the  defendant's  title.  He,  therefore,  clainunl,  that  as 
the  absolute  deed  was  execut(>d  and  delivered  before  the  estate  became 

1  Later  EnglLsh  cases  arc  Sturgeon  v.  Wiugfirhl,  15  M.  Sc  W.  224;  GtncraL 
Finance  Co.  v.  Liberator  Buildinc]  Society,  10  Cli.  D.  15;  Poulton  v.  Moore, 
[1915]   1  K.  B.  400. 

See  Van  Rensselaer  v.  Kearney,  11  How.  (U.  S.)  297,  322;  Veve  v.  Sanchez, 
226  U.  S.  234;  Pendill  v.  Society, '^5  Mich.  491;  Ilaqensick  v.  Castor,  53  Neb. 
495;  Weaver  v.  Drake,  79  Okhi.  277;  Flanary  v.  Kane,  102  Va.  547,  566. 
Compare  Van  Gilder  v.  BuUcn,  159  N.  C.  291. 


770  HOYT    V.    DIMON  [CHAP.   XII 

vested  in  the  mortgagee,  at  law,  the  mortgage  title  was  superseded; 
and  that  the  defendant  held  possession,  by  virtue  of  the  absolute 
deed  only. 

It  was  also  contended,  that  nothing  passed  to  Norton,  by  the  mort- 
gage deed  of  Austin  Nichols,  he  having  no  interest  in  the  land,  at  the 
time  of  the  execution  and  delivery  of  the  deed ;  his  right  having  been 
acquired  subsequently,  by  the  deed  of  Daniel  Nichols. 

The  court,  in  their  charge,  instructed  the  jury,  that  the  only 
material  fact  for  them  to  find,  was,  whether  the  mortgage  deed  from 
Austin  Nichols  to  Norton,  was  fraudulent ;  if  so,  that  they  must  find 
their  verdict  for  the  plaintiff;  if  otherwise,  that  they  must  find  for 
the  defendant.  The  jury  returned  their  verdict  for  the  defendant  : 
And  the  plaintiff  moved  for  a  new  trial,  on  the  ground  of  a  mis- 
direction; which  motion  was  reserved  for  the  opinion  of  the  nine 
judges. 

Baldwin,  J.  From  the  statement  of  this  case,  it  is  apparent,  that 
the  right  of  the  plaintiff  to  recover,  depends  on  his  shewing,  that  no 
title  was  derived  to  the  defendant,  by  either  of  the  deeds.  If  either 
conveyed  a  valid  title,  the  defendant  was  entitled  to  a  verdict. 

As  the  jury  found  the  mortgage  deed  not  to  be  fraudulent,  and 
thereupon,  gave  their  verdict  for  the  defendant,  the  plaintiff  cannot 
claim  a  new  trial,  on  the  ground,  that  the  last  deed  was  not  submitted 
to  their  consideration;  nor  on  the  ground,  that  the  direction  given 
them  was  incorrect,  unless,  the  law  be  so,  that  the  mortgage  deed, 
though  not  fraudulent,  was  of  no  effect  for  want  of  title  in  the  grantor, 
at  the  time  of  its  execution,  and  could  not  be  made  valid  by  subsequent 
title;  or  that  the  mortgage  title  was  destroyed,  by  the  subsequent 
absolute  deed.  The  court,  when  they  charged  the  jury,  must  have 
considered  the  mortgage  as  legal  and  valid,  unless  made  void,  by  the 
statute  against  fraudulent  conveyances;  which,  as  a  question  of  fact, 
they  submitted,  with  the  evidence,  to  the  jury.  I  am  of  the  same 
opinion. 

It  has  been  decided,  in  Connecticut,  in  conformity,  I  conceive,  to 
the  principles  of  the  common  law,  that  a  grantor,  with  warranty, 
but  without  title,  is  estopped  from  denying  his  former  title,  or  claim- 
ing under  a  subsequent  one;  and  such  covenants  running  with  the 
land,  this  estoppel  will  affect  and  bind  all  those  who  claim  under  the 
grantor;  of  course,  in  this  case,  Austin  Nichols,  and  the  plaintiff, 
who  claims  under  him,  are  estopped  from  setting  up  the  subsequent 
title  derived  from  Daniel  Nichols,  to  defeat  the  mortgage  deed.  Town 
of  Norwich  v.  Congden,  1  Root's  Rep.  222 ;  Co.  Litt.  265 ;  Trevivan 
V.  Lawrence,  6  Mod.  258 ;  s.  c.  Salk.  Rep.  276;  Palmer  v.  Ekins,  2  Ld. 
Raym.  Rep.  1551.  The  subsequent  title  will  thus  inure  to  the  benefit 
of  the  first  grantee.  The  mortgage,  then,  is  valid,  unless  defeated 
by  the  absolute  deed  from  Austin  Nichols  to  Philo  Norton,  the  mort- 
gagee. This,  it  is  claimed,  absorbed  the  mortgage  though  void  as  to 
creditors,  it  being  good  between  the  parties.      [The  court  held  that 


BAXTER    V.    BRADBURY  771 

the  mortgage  title  was  not  destroyed  by  the  subsequent  absolute  deed.] 
All  the  other  Judges  concurred  in  this  opinion,  except  Edmond  and 
Ingersoll,  Js.,  who  did  not  judge. 

New  trial  not  to  be  granted.^ 


BAXTER    V.   BR.VDBURY 
20  Maine  260.    1841. 

CovEXANT  broken,  for  breach  of  the  covenant  of  seisin  in  a  deed  of 
warranty  from  the  defendant  to  the  plaintiff,  dated  August  3d,  1835. 
In  this  deed  many  lots  of  land  were  conveyed,  and  several  in  Corinth 
were  described.     To  prove  the  breach  of  the  covenant  declared  on,  the 

1  The  doctrine  is  established  by  numerous  decisions  in  the  United  States 
that  if  A.,  having  no  title  or  an  imperfect  title,  conveys  to  B.,  with  covenant 
of  general  warrantj',  and  A.  thereafter  acquires  title  or  perfects  his  title,  such 
after-acquired  title  will  inure  to  the  benefit  of  B.,  and  will  be  legally  vested 
in  B.  forthwith  without  a  second  conveyance  by  A.  The  same  effect  has  been 
given  to  other  covenants.  Thus  to  a  covenant  of  special  warranty.  Kimball 
V.  Blaisdell,  5  N.  H.  533.  But  the  after-acquired  title- must  come  from  a 
source  covered  by  the  covenant.  Bennett  v.  Daris,  90  Me.  457;  Hnzzcy  v. 
Hefjernan,  143  Mass.  232;  Bell  v.  Twilight,  26  N.  H.  401.  Of  non-claim. 
Trull  V.  Eastman,  3  Met.  (Mass.)  121;  Garlick  v.  Pittsburg  etc.  Ry.  Co., 
67  Ohio  St.  223.  Contra,  Pike  v.  Galvin,  29  Me.  183.  See  also  Jackson  v. 
Brndjord,  4  Wend.  (N.  Y.)  619.  Of  further  assurance.  Bennett  v.  Waller, 
23  111.  97,  183.  But  see  Hope  v.  Stone,  10  Minn.  141.  Of  right  to  convey. 
Foss  V.  Strachn,  42  N.  H.  40.  But  compare  Doane  v.  WiUcutl,  5  Gray  (Mass.) 
328.    Of  quiet  enjoyment.     Tully  v.  Taylor,  84  N.  J.  Eq.  459. 

It  is  frequently  said  that  this  effect  is  given  to  the  covenants  in  order  to 
avoid  circuity  of  action,  but  such  effect  has  been  given,  even  though  no 
suit  could  be  brought  against  the  grantor  on  the  covenants.  Thus  of  a  con- 
veyance with  covenants  by  a  married  woman.  Hill  v.  West,  8  Ohio  222.  226 
Contra,  Jackson  v.  Vanderheydcn,  17  Johns.  (N.  Y.)  167.  As  to  the  effect  of 
covenants  in  a  conveyance  by  a  State,  see  C oynmonwcalth  v.  Andre,  3  Pick. 
(Mass.)  224.  And  such  effect  has  also  been  given  to  covenants  where  the 
grantor  has  been  relieved  from  liability  thereon  by  a  discharge  in  bankiiiptcy, 
Bush  v.  Cooper,  18  How.  (U.  S.)  82;  or  by  the  statute  of  limitations.  Cole  v. 
Raymond,  9  Gray  (Mass.)  217.  But  see  Webber  v.  Webber,  6  Grcenl.  (Me.) 
127,  136-139.     Compare  Goodel  v.  Bennett,  22  Wis.  565. 

When  the  gi-antor  conveys  "  his  right,  title  and  interest "  by  a  quitclaim 
deed  meaning  to  pass  only  his  present  interest,  there  is  no  estoppel  preventing 
him  from  a.-;serting  any  after-acquired  title.  Vary  v.  Smith,  162  Ala.  457;  King 
V.  Booth,  94  Ark.  306;  Little  v.  Eaton,  267  III.  623;  Comstock  v.  Smith.  13 
Pick.  (Mass.)  116;  Wight  v.  Shaw,  5  Cu.sh.  (Mass.)  56;  Miller  v.  Ewing,  6 
Gush.  (Mass.)  34;  Ernst  v.  Ernst,  178  Mich.  100;  Hohn  v.  Bidwell,  27  S.  D. 
249.  Compare  Bring  v.  Sirarm,  176  Iowa  153;  Crcssey  v.  Cresset/.  215  Mass. 
65,  67;  Robinson  Co.  v.  Do'w,  !87  Pac.  (Wvo.)  931.  Contra,' Barada  Co. 
V.  Kcleher,  214  S.  W.  (Mo.)  961 ;  Blackwcll  v.  Harrelson,  99  S.  C.  264.  See 
35  L.  R.  A.  N.  s.  1182,  note. 

Sale  or  a.ssignment  of  an  expectancy  by  a  prospective  heir.  Trull  v.  East- 
man, 3  Met.  (Mass.)  121 ;  .37  Am.  Dec.  128  note;  Blackwell  v.  Harrelson,  99 
S.  C.  572;  25  L.  R.  A.  n.  s.  436  note;  L.  R.  A.  1917  C.  267  note.  Compare 
Garrow  v.  Toxey,  188  Ala.  572. 


772  BAXTER    V.    BRADBURY  [CHAP.   XII 

plaintiff  read  a  deed  of  warranty  from  John  Peck  to  Benjamin  Joy, 
conveying  the  town  of  Corinth,  with  certain  reservations,  dated  July 
27th,  1799.  The  land  in  controversy  was  part  of  the  land  conveyed  to 
Joy.  The  plaintiff  proved  the  consideration  paid  for  these  lots,  and 
there  rested  his  case. 

The  defendant  then  read  a  deed  of  mortgage,  dated  August  3d,  1835, 
from  the  plaintiff  to  him,  of  the  same  premises  to  secure  the  payment 
of  certain  notes;  and  a  deed  of  quitclaim  of  the  same  premises  from 
the  plaintiff  to  Chester  Baxter,  dated  July  31,  1837.  To  prove  a 
seisin  in  the  plaintiff,  and  also  for  the  purpose  of  reducing  the 
damages,  the  defendant  offered  in  evidence  a  deed  of  quitclaim  from 
Amos  "Whitney  to  him  of  one  of  the  lots,  dated  August  24,  1835, 
and  the  warranty  deed  of  Thomas  Whitten,  dated  the  same  day,  of 
another  lot,  and  offered  evidence  to  show  that  the  grantors  were 
then  in  possession.  To  the  introduction  of  this  evidence  the  plain- 
tiff objected,  and  Emery,  J.,  presiding  at  the  trial,  ruled  it  to  be 
inadmissible,  and  rejected  it.  The  defendant  also  offered  the  contract 
of  Joy,  dated  in  June,  1835,  to  convey  certain  of  the  lands  in  contro- 
versy to  the  defendant,  and  a  deed  of  the  same  from  the  heirs  of  Joy, 
dated  Oct.  20,  1837,  after  this  action  was  commenced,  but  the  judge 
rejected  it.  The  defendant  then  offered  to  prove  that  the  lots  were  of 
less  value  than  the  purchase-money.     This  evidence  was  rejected. 

A  default  was  then  entered  by  consent,  and  the  damages  assessed  at 
the  amount  of  the  consideration  and  interest,  under  an  agreement, 
that  if  in  the  opinion  of  the  whole  court,  the  evidence  rejected  should 
have  been  admitted,  the  default  was  to  be  taken  off,  and  the  action 
stand  for  trial. 

The  opinion  of  the  court  was  by 

Weston,  C.  J.  It  is  assumed  in  argument  that  Amos  Whitney  and 
Thomas  Whitten  were  seised  of  the  lands  described  in  their  respective 
deeds  to  the  defendant,  dated  August  24,  1835.  The  lands  constitute 
a  part  of  that,  which  is  the  subject-matter  of  this  suit.  These  deeds, 
with  the  evidence  of  their  seisin,  were  rejected  as  inadmissible,  by  the 
presiding  judge  at  the  trial.  If  this  evidence  could  legally  have  any 
effect  upon  the  right  of  the  plaintiff  to  recover,  or  upon  the  measure 
of  damages,  it  ought  not  to  have  been  rejected. 

The  rules,  which  have  been  established  to  determine  the  measure  of 
damages,  upon  the  breach  of  covenants  in  deeds  for  the  conveyance  of 
real  estate,  have  been  framed  with  a  view  to  give  the  party  entitled  a 
fair  indemnity  for  damage  he  has  sustained.  Thus  if  the  covenant  of 
seisin  is  broken,  as  thereby  the  title  wholly  fails,  the  law  restores  to 
the  purchaser,  the  consideration  paid,  which  is  the  agreed  value  of  the 
land,  with  interest.  But  in  this,  as  well  as  in  other  covenants,  usual 
in  the  conveyance  of  real  estate,  if  there  exists  facts  and  circumstances, 
which  would  render  the  application  of  the  rule  inequitable,  they  are  to 
be  taken  into  consideration  by  a  jury.  Leland  v.  Stone,  10  Mass.  R. 
459.     The  covenant  was  intended  to  secure  to  the  plaintiff  a  legal 


BAXTER    V.    BRADBURY  773 

seisin  in  the  land  conveyed.  If  it  is  broken  and  he  fails  of  that  seisin, 
he  has  a  right  to  reclaim  the  purchase-money.  But  if  in  virtue  of 
another  covenant  in  the  same  deed,  which  was  also  taken  to  assure  to 
him  the  subject-matter  of  the  conveyance,  he  has  obtained  that  seisin, 
it  would  be  altogether  inequitable  that  he  should  have  the  seisin,  and 
be  allowed  besides  to  recover  back  the  consideration  paid  for  it.  The 
rule  as  to  the  measure  of  damages  for  the  breach  of  this  covenant, 
which  is  just  in  its  general  application,  could  never  be  intended  to 
apply  to  such  a  case.  In  Whiting  v.  Davey,  15  Pick.  428,  it  is 
strongly  intimated  by  the  court,  that  this  rule  may  have  exceptions,  as 
it  undoubtedly  has. 

If  Whitney  and  Whitten  were  seised,  immediately  upon  the  execu- 
tion of  their  deeds,  which  were  executed  a  few  days  after  tliat,  upon 
which  the  plaintiff  declares,  their  seisin  at  once  inured  and  i)ass('d  to 
him,  in  virtue  of  the  covenant  of  general  warranty  in  his  deed.  Somes 
V.  Skinner,  3  Pick.  52.  It  has  been  insisted  by  the  counsel  for  the 
plaintiff  that  this  effect  depends  upon  the  election  of  the  grantee,  and 
that  the  plaintiff  here  would  reject  the  title  arising  by  estoppel.  Pnt 
we  are  aware  of  no  legal  principle,  which  can  sustain  this  position. 
In  the  case  last  cited,  the  court  say,  "  that  the  general  princii)le  to  be 
deduced  from  all  the  authorities  is,  that  an  instrument,  Avliich  legally 
creates  an  estoppel  to  a  party  undertaking  to  convey  real  estate,  he 
having  nothing  in  the  estate  at  the  time  of  the  conveyance,  but  acquir- 
ing a  title  afterwards  by  descent  or  purchase,  does  in  fact  pass  an 
interest  and  a  title  from  the  moment  such  estate  comes  to  the  grantor." 
The  plaintiff  by  taking  a  general  covenant  of  warranty,  not  only 
assented  to,  but  secured  and  made  available  to  himself,  all  the  legal 
consequences,  resulting  from  that  covenant.  Having  therefore  under 
his  deed,  before  the  commencement  of  the  action,  acquired  the  seisin, 
which  it  was  the  object  of  both  covenants  to  secure,  he  could  be 
entitled  only  to  nominal  damages,  and  in  our  judgment  the  evidence 
rejected  was  legally  admissible.  The  estoppel,  being  part  of  the  title, 
may  be  given  in  evidence,  without  being  pleaded.  Adains  v.  Barnes, 
17  Mass.  R.  365.  Whether  the  seisin  of  "Whitney  and  Wliitten  was 
defeasible  or  indefeasible,  is  not  a  question  which  can  arise  under  this 
covenant,  which  operates  only  upon  the  actual  seisin  and  does  not 
assure  the  paramount  title. 

The  same  course  of  reasoning,  and  the  same  authorities,  whii-li 
justified  the  admission  of  the  testimony  rejected,  required  tliat  th(> 
evidence  of  title  derived  by  estoppel  from  Joy's  heirs,  should  have 
been  received. 

It  has  been  objected,  that  these  lands  may  Iinv(>  ])een  doviscd  ])y 
Joy,  which  may  have  prevented  a  descent  to  the  heirs.  Put  an  estate 
in  fee,  upon  the  decease  of  the  ancestor,  is  presumed  to  descend,  in 
pursuance  of  the  laws  of  inheritance,  unless  the  descent  is  .shown  to 
have  been  intercepted  by  a  devise.  By  the  convey nneo  from  Joy's 
heirs  to  the  defendant,  the  plaintiff  acquired  not  inily  the  seisin,  but 


774  BLANCH ARD    V.   ELLIS  [CHAP.   XII 

an  indefeasible  title.  As,  however,  that  was  executed,  since  the 
commencement  of  the  action,  the  plaintiff  is  entitled  to  nominal 
damages,  and  to  nothing  more,  if  he  has  not  been  disturbed  in  his 
possession;  and  judgment  may  be  rendered  for  him  therefor  on 
the  default,  which  has  been  entered.  But  if  the  actual  seisin  of 
"Whitney  and  Whitten  is  intended  to  be  contested,  or  the  plaintiff 
would  show  that  he  had  been  dispossessed,  before  his  title  by 
estoppel  attached,  the  default  must  be  taken  off,  and  the  action  stand 
for  trial.^ 


BLANCHAKD  v,  ELLIS  and  Another 
1  Gray  (Mass.)  195.    1854. 

Action  of  contract  on  the  covenant  against  encumbrances,  con- 
tained in  a  deed  from  the  defendants  to  the  plaintiff,  dated  the  9th 
of  November,  1838,  purporting  to  be  made  in  consideration  of  the 
sum  of  $5,520,  and  to  convey  "  one  undivided  quarter  part  of  the 
east  half  of  township  numbered  three  in  the  eighth  range  of  tOAvn- 
ships  in  the  County  of  Penobscot  and  State  of  Maine,"  with  the 
usual  covenants  of  warranty.  The  declaration  set  forth  the  execu- 
tion and  delivery  of  the  deed;  and  then  alleged  that,  at  the  date  of 
the  execution  thereof,  the  land  therein  described  was  not  free  from 
encumbrances,  but  was  under  an  attachment,  made  on  the  18th  of 
February,  1836,  in  an  action  brought  by  Wiggins  Hill  against  James 
T.  Hobart,  then  owner  of  the  premises,  and  from  whom  the  defend- 
ants derived  their  title;  that  in  said  action  Hill,  on  the  6th  of 
l^ovember,  1838,  recovered  judgment  for  the  sum  of  $52,755.39; 
and  on  said  judgment  execution  issued,  and  was  duly  levied  upon  said 
land  on  the  25th  of  December,  1838;  and  seisin  and  possession  of 
said  land  was  delivered  to  Hill,  the  judgment  creditor,  and  received 
by  him.    Writ  dated  October  18th,  1851. 

At  the  trial  before  Bigeloiv,  J.,  there  w^as  evidence  tending  to 
prove  the  facts  stated  in  the  declaration,  and  also  the  following 
facts:  The  amount  of  the  execution  was  much  greater  than  the 
value  of  the  land  levied  upon,  which  was  the  whole  of  the  east  half 
of  the  township,  of  which  the  land  conveyed  to  the  plaintiff  consti- 
tuted an  undivided  quarter  part ;  and  by  virtue  of  the  levy  the  title 
to  the  east  half  of  said  township  became  absolutely  vested  in  Hill 
in  one  year  from  the  date  of  the  levy;  and  he  continued  in  posses- 
sion of  the  land  levied  upon  until  the  4th  of  December,  1848,  when 
he  made  a  deed  to  the  defendants  of  the  portion  included  in  their 
deed  to  the  plaintiff,  expressed  to  be  in  consideration  of  $1,100,  and 
with  the  usual  covenants  of  warranty.  In  February,  1841,  the  de- 
fendants gave  notice  to  the  plaintiff  of  this  failure  of  title,   and 

1  See  McLennan  v.  Prentice,  85  Wis.  427,  433. 


BLANCHARD    V.    ELLIS  775 

offered  to  transfer  to  him  certain  stock  by  way  of  indemnity  for  his 
loss.  During  the  time  that  Hill  remained  in  possession  of  said  half 
township,  he  received  the  sum  of  four  hundred  dollars  net  for  stump- 
age.  The  plaintiff  offered  no  evidence,  beyond  what  has  already 
been  stated,  to  show  that  the  premises  were  more  or  less  valuable 
than  at  the  date  of  the  deed  from  the  defendants  to  him;  or  that  any- 
thing had  been  realized  or  received  therefrom,  except  said  stumpage. 

The  case  was  taken  from  the  jury  by  consent  of  parties,  and  re- 
served for  the  consideration  of  the  full  court,  Avith  the  agreement 
that  if  the  court  should  be  of  opinion,  upon  the  foregoing  facts,  that 
the  plaintiff  was  ciititled  to  recover  nominal  damages  only,  judg- 
ment should  be  rendered  in  his  favor  for  one  dollar;  to  which  should 
be  added  the  sum  of  one  hundred  dollars,  if  the  court  should  be  of 
opinion  that  the  plaintiff  was  entitled  to  any  part  of  the  stumpage 
received  by  Hill;  and  that  if  the  court  should  be  of  opinion  that  the 
plaintiff"  was  entitled  to  recover  any  other  or  further  damages,  the 
case  should  be  sent  to  a  jury  for  trial  and  for  the  assessment  of  such 
damages,  on  principles  to  be  determined  by  the  court. 

Thomas,  J.  It  is  not  doubted  that  the  facts  of  this  case  establish 
a  breach  of  the  defendants'  covenant ;  but  the  question  at  issue  be- 
tween the  parties  is  as  to  the  measure  of  damages. 

The  defendants  say,  that  a  deed  of  the  premises  having  been  made 
to  them  by  Hill,  on  the  4th  of  December,  1848,  the  title  so  conveyed 
to  them  inured,  by  way  of  estoppel,  to  the  plaintiff,  and  is  now  in 
him,  and  that  the  only  damages  he  can  recover  are  nominal,  or  his 
quarter  of  the  stumpage  of  the  entire  tract ;  such  stumpage  constitut- 
ing the  only  rents  and  profits  of  the  estate  during  the  eviction  of  the 
plaintiff,  or  the  difference,  if  any,  between  the  value  of  the  land 
at  the  time  of  the  conveyance  by  the  defendants  to  the  ])laintiff,  and 
its  value  at  the  time  of  the  conveyance  by  Hill  to  the  defendants. 

The  general  doctrine,  on  which  the  defendants  rely,  is  quite 
familiar;  that  if  A.,  having  no  title,  make  a  deed  of  land  to  B.,  with 
full  covenants  of  warranty,  and  A.  subsequently  acquire  a  title  by 
descent  or  purchase,  he  is  estopped  by  his  covenants,  as  against  his 
grantee,  to  deny  that  he  had  a  good  title  at  the  time  of  his  grant, 
and  such  new  title  is  said  to  inure  to  his  grantee.  Strictly  speaking, 
there  would  seem  to  be  no  transmutation  of  estate  when  the  new  title 
comes  to  the  grantor.  Nor  is  there  any  force  in  the  original  deed  to 
convey  a  title  not  then  existing  in  the  grantor;  for  nothing  can  pass 
but  his  then  existing  title.  But  the  grantor  and  those  claiming 
under  him  are  estopped  to  deny  the  validity  of  the  title,  which  he 
has  solemnly  asserted,  and  to  set  u])  a  title  against  it.  The  law 
presumes  that  he  has  spok(>n  and  acted  according  to  the  truth  of  the 
case,  and  will  not  permit  him  or  those  claiming  under  him  to  deny 
it.  "The  reasons,"  says  Mr.  Butler,  in  a  note  to  Co.  Lit.  ;'r)2  a, 
"why  estoppels  are  allowc^l,  seem  to  be  thes(> :  'N'o  man  ouirlit  tn 
allege  anything  but  the  truth  for  his  defence,  and  wliat  lie  lias  allegi'd 


776  BLANCH ARD    V.    ELLIS  [CHAP.    XII 

once  is  to  be  presumed  true,  and  tlierefore  he  ought  not  to  contra- 
dict it ;  for,  as  it  is  said  in  the  4  Inst.  272,  aUegans  contraria  non  est 
audiendiis."  It  might  be  curious  to  trace  the  progress  of  this  doc- 
trine of  estoppel,  as  applicable  to  the  covenant  of  warranty,  from 
the  simple  rebutter  of  Lord  Coke  (Co.  Lit.  265  a),  which  should  bar 
a  future  right,  to  avoid  a  circuity  of  action,  to  its  present  condition, 
in  which  there  is  claimed  for  it  the  full  force  of  a  feoffment,  or  fine 
or  common  recovery  at  the  common  law ;  that  is,  having  the  function 
of  actually  devesting  the  feoffor  or  conusor  of  any  estate  which  he 
might  thereafter  acquire.  But  waiving,  because  not  necessary  to  our 
purpose,  the  discussion  of  the  origin  and  extent  of  the  doctrine  of 
estoppel,  it  will  be  sufficient  to  say  that  we  do  not  feel  called  upon 
to  extend  its  application;  especially  when  such  extension  would  tend 
to  defeat  the  principle  on  which  the  doctrine  of  estoppel  rests,  which 
is  the  prevention  of  wrong  and  injustice. 

Supposing  it  to  be  well  settled  that,  if  a  new  title  come  to  the 
grantor  before  the  eviction  of  his  grantee,  it  would  inure  to  the 
grantee,  and  not  deciding,  because  the  case  does  not  require  it, 
whether  the  grantee,  even  after  eviction,  might  elect  to  take  such 
new  title,  and  the  grantor  be  estopped  to  deny  it ;  we  place  the  de- 
cision of  this  case  on  this  precise  ground,  that  where  a  deed  of  land 
has  been  made  with  covenants  of  warranty,  and  the  grantee  has  been 
wholly  evicted  from  the  premises  by  a  title  paramount,  the  grantor 
cannot,  after  such  entire  eviction  of  the  grantee,  purchase  the  title 
paramount,  and  compel  the  grantee  to  take  the  same  against  his 
will,  either  in  satisfaction  of  the  covenant  against  encumbrances,  or 
in  mitigation  of  damages  for  the  breach  of  it. 

We  do  not  seek  a  better  illustration  of  the  soundness  of  this  prin- 
ciple than  is  furnished  by  the  facts  of  this  case.  The  land,  for  which 
the  consideration  stated  in  the  deed  was  $5,520,  was  under  attach- 
ment in  a  suit  in  which  judgment  had  been  recovered  for  more  than 
fifty  thousand  dollars ;  the  entire  tract,  of  which  one  quarter  had  been 
conveyed  to  the  plaintiff,  was  afterwards  levied  upon,  seisin  given  to 
the  creditor,  and  the  plaintiff  wholly  evicted.  He  had  no  estate  or 
interest  left.  The  covenant  against  encumbrances  being  personal, 
and  not  running  with  the  land,  he  had  nothing  which  could  pass  by 
deed.  He  could  not  redeem  his  undivided  quarter,  w^ithout  a  redemp- 
tion of  the  entire  estate.  He  could  not,  for  a  period  of  ten  yeai's, 
enter  upon  the  land,  without  committing  a  trespass.  The  defend- 
ants admit  the  existence  of  the  title  paramount,  and  the  eviction  of 
the  plaintiff;  but  contend,  after  the  eviction  has  continued  ten  years 
that  they,  as  grantors,  may  avail  themselves  of  this  rule  of  estoppel, 
to  force  the  grantee  to  take  the  estate,  however  changed  the  situation 
of  his  own  affairs,  or  the  condition  of  the  land.  So  that  the  equi- 
table rule  of  estoppel,  which  forbids  the  grantor  to  deny  that  he  had 
the  estate  which  he  had  assumed  to  grant,  and  the  truth  of  his  own 
covenant  —  a  rule  established  for  the  protection  of  the  grantee,  and 


BLANCHARD    V.    ELLIS  777 

to  be  applied  only  to  effect  justice  aud  prevent  wrong  —  is  converted 
into  a  right  of  election  in  the  grantor,  upon  a  breach  of  his  covenant, 
to  pay  back  the  consideration  money,  or  by  indirection  to  reconvey 
the  estate.  We  say  an  election  by  the  grantor;  for  it  is  clear  that 
the  grantee  cannot  compel  the  grantor  to  buy  in  the  paramount  title, 
but  must  rely  solely  upon  his  covenants.  It  is  equally  clear  that,  if 
the  estate,  during  the  eviction,  should  greatly  increase  in  value,  the 
grantor  would  not  be  likely  to  purchase  such  paramount  title,  but 
would  submit  to  an  action  on  his  covenants.  So  that,  under  any  rule 
of  damages  suggested,  the  plaintiff  would  lose  many  of  the  advan- 
tages resulting  from  the  ownership  of  land,  including  the  increase 
of  value  by  the  application  of  his  own  labor  or  capital,  or  its  rise  in 
the  market.     There  is  neither  mutuality  nor  equity  in  such  a  rul(>. 

And  we  are  satisfied,  upon  examination  of  the  authorities,  that  no 
case  will  be  found  which  carries  the  doctrine  of  estoppel  to  the 
length  claimed  by  the  defendants,  which  in  fact  estops  the  grantee, 
and  leaves  a  right  of  election  in  the  grantor.  The  case  of  Baxter  v. 
Bradbury,  20  Maine  260,  has  been  strongly  pressed  upon  us  as  a  de- 
cision of  the  very  question  at  issue.  If  this  were  so,  the  question 
having  reference  to  the  title  to  land  in  that  State,  the  decision,  on 
that  ground,  as  well  from  our  respect  for  that  court,  would  be  en- 
titled to  the  highest  consideration,  if  indeed  it  were  not  conclusive. 
Cut,  though  there  are  dicta  in  that  case,  which  state  the  doctrine  very 
broadly,  the  case  itself  differs  materially  from  the  one  at  bar.  That 
was  an  action  for  a  breach  of  the  covenant  of  seisin  in  a  deed  of 
warranty,  Avitli  a  mortgage  back  of  the  premises,  of  the  same  date, 
to  the  grantor.  The  ground,  taken  by  the  counsel  of  the  defendant, 
and  upon  which  the  court  seem  to  have  proceeded  in  their  judgment, 
Avas,  that  there  never  had  been  any  interruption  of  the  possession 
of  the  plaintiff.  In  seeking  to  deduce  from  that  case  a  rule  for  our 
guidance,  this  circumstance  must  be  deemed  most  material;  as,  for 
a  breach  of  this  covenant  against  encumbrances,  nominal  damages 
only  could  be  recovered,  unless  the  plaintiff  had  been  evicted  by  title 
paramount,  or  had  actually  discharged  the  encumbrance. 

The  court,  in  the  case  of  Ba.nter  v.  Bradbury,  refer  to  a  statement 
of  the  result  of  the  authorities  by  the  late  Chief  Justice  Parker  in 
the  case  of  Somes  v.  Skinner,  3  Pick.  52.  An  examination  of  the 
whole  opinion  in  that  case  would  lead  us  to  infer  that  this  statement 
was  not  made  without  some  misgiving  and  distrust.  The  precise 
question  now  under  consideration  was  not  before  the  court,  and  what 
in  that  part  of  the  case  was  decided  was,  that  where  a  title  has 
inured  by  estoppel,  it  will  avail  the  grantee,  not  oi\ly  against  the 
grantor  and  his  heirs,  but  strangers,  who  usurp  possession  without 
right;  and  under  the  facts  of  the  case,  and  in  the  view  in  which  it 
was  applied,  there  is  no  occasion  to  reconsider  the  rule  there  stated. 

The  case  of  Cornell  v.  Jacl-son.  3  Oush.  506,  Avas  an  action  upon 
the  covenant  of  seisin.     An   action  had   before   been  brouglit   upon 


778  BLANCH ARD    V.    ELLIS  [CHAP.   XII 

the  covenant  of  warranty,  in  which  there  was  a  judgment  for  the 
defendant.  9  Met.  150.  The  defendant  had  conveyed  land  to  the 
plaintiff,  bounded  on  land  of  Tuckerman;  a  conventional  line  had 
been  fixed  by  parol  agreement  between  the  defendant  and  Tucker- 
man; and  they  had  occupied  according  to  that  conventional  line; 
but  the  court,  in  the  action  on  the  covenant  of  warranty,  held  that 
the  true  line,  and  not  the  conventional  line,  was  the  boundary  re- 
ferred to  in  the  defendant's  deed.  An  action  was  then  brought  on 
the  covenant  of  seisin;  and  the  possession  of  land  by  Tuckerman 
between  the  true  line  and  the  conventional  line,  being  under  a  claim 
of  title,  was  held  to  be  a  breach  of  the  covenant  of  seisin.  In  the 
assessment  of  damages,  it  appeared  that  a  portion  of  the  land  had 
been  recovered  by  the  defendant  of  the  heirs  of  Tuckerman;  and 
the  report  of  the  assessor  submitted  the  question,  whether  the  value 
of  the  land  so  recovered  should  be  included  in  his  assessment.  The 
court  said :  "  If,  by  any  means,  the  party  is  restored  to  his  land 
before  the  assessment  of  damages,  though  it  cannot  purge  the  breach 
of  covenant,  it  will  reduce  the  damages  pro  tanto."  In  that  case  the 
title  was  in  the  grantor  at  the  time  of  the  deed,  and  he  might  have 
made  a  valid  conveyance  but  for  the  disseisin;  and  what  the  court 
decided  was,  that  if  he  subsequently  regained  the  seisin,  and  the 
land  was  restored  to  the  grantee,  it  would  proportionally  reduce  his 
damages. 

Upon  examination  of  the  authorities,  we  think  no  decision  will 
be  found  to  be  in  conflict  with  the  point  now  decided,  or  which  leads 
to  the  result  claimed  by  the  defence.  There  are  dicta  which,  taken 
out  from  their  connection  with  the  facts,  in  relation  to  which  they 
are  made,  and  by  which  their  soundness  must  always  be  tested, 
might  tend  to  a  different  conclusion ;  but  no  precedent  has  so  extended 
the  doctrine  of  estoppel,  and  we  do  not  feel  willing  to  make  one. 

The  question  of  course  arises,  How  will  the  defendants,  the 
grantors,  be  protected?  Will  they  not  be  still  estopped  to  deny  the 
title  of  the  plaintiff,  if  he  should  bring  his  writ  of  entry  for  the 
land?  The  answer  is,  that  the  judgment  in  this  suit  will  be  a  per- 
fect bar  to  the  plaintiff  and  those  claiming  under  him.  Porter  v. 
Hill  9  Mass.  34. 

With  regard  to  the  rule  of  damages,  there  can  be  no  serious  con- 
troversy, if  the  plaintiff  has  gained  no  title  by  estoppel;  the  plain- 
tiff will  be  entitled  to  the  consideration  money  and  interest.  The 
consideration  expressed  in  the  deed  is  prima  facie  the  true  one,  but 
liable  to  be  controverted  by  evidence. 

The  case  must  be  sent  to  a  jury  to  ascertain  the  damages  under 
this  rule.^ 

1  Southern  Plantations  Co.  v.  Kennedy  Heading  Co.,  104  Miss.  131 ; 
Jones  V.  Gallegher,  54  Okla.  611,  aceord. 

In  Resser  v.  Carney,  52  Minn.  397,  A.,  having  no  title,  purported  to  con- 
vey land  to  B.,  with  covenants  of  seisin  and  waiTanty.    B.  brought  suit  on 


BLANCHARD    V.    ELLIS  779 

the  covenant  of  seisin.  After  suit  brought  A.  bought  in  the  title  and  urged 
that  B.  was  compelled  to  accept  such  title.  The  land  was  vacant  at  the 
time  of  A.'s  deed  and  had  at  all  times  continued  vacant.  The  court  said, 
page  402: 

"  Upon  the  cjuestion  thus  presented,  the  law  cannot  be  said  to  be  settled. 
In  support,  wholly  or  to  some  extent,  of  the  proposition  that  a  title  acquired 
by  the  grantor  subsequent  to  the  conveyance  by  him  inures  by  operation  of 
law  to  his  grantee,  even  though  he  is  unwilling  then  to  accept  it,  and  hence 
will  mitigate  the  damages  recoverable  for  breach  of  covenant,  or  wholly  de- 
feat an  action  for  damages,  according  to  the  circumstances  of  the  case,  may 
be  cited  Baxter  v.  Bradbury,  20  Me.  260;  King  v.  Gilson's  Adm'x,  32  111.  348; 
Reese  v.  Smith,  12  Mo.  344;  Morrison  v.  Underwood,  20  N.  H.  369;  Knowles 
V.  Kennedy,  82  Pa.  St.  445;  Farmers'  Bank  v.  Glenn,  68  N.  C.  35;  Ccfrnell  v. 
Jackson,   3   Cush.   506;    Boulter   v.    Hamilton,    15   U.   C.   C.   P.    125,    citing 

Doe  v.  Webster,  2  U.  C.  Q.  B.  225.    See,  also.  Knight  v.  Thayer,  125 

Mass.  25.  In  some  of  these  cases,  however,  it  may  be  noticed  that  the  plain- 
tiff was  in  possession  of  the  granted  lands  tmder  his  deed. 

"  On  the  contrary',  the  doctrine  is  well  supported  by  authority  that  a 
grantee  to  whom  no  title  passed  by  the  deed  of  conveyance,  who  acquired 
no  possession,  and  no  right  of  possession,  may  recover  the  purchase  money 
paid,  with  interest,  in  an  action  for  a  breach  of  the  covenant  of  sei.sin,  even 
though  the  grantor  may  have  acquired  a  title  during  the  pendency  of  such  an 
action,  or,  perhaps,  even  prior  to  its  commencement ;  that  the  grantee  is  not 
to  be  compelled  to  accept  the  after-acquired  title  in  satisfaction  of  the 
already-broken  covenant  of  seisin,  or  in  mitigation  of  damages  recoverable 
for  the  breach.  Blanchard  v.  Ellis,  1  Gray  195;  Tucker  v.  Clark,  2  Sandf. 
Ch.  96;  Bingham  v.  Wciderwax,  1  N.  Y.  509;  Nichol  v.  Alexander,  28  Wis. 
118;  Mclnnis  v.  Lyman,  62  Wis.  191,  (22  N.  W.  Rep.  405);  Burton  v.  Reeds, 
20  Ind.  87,  93;  Rawle,  Gov.  §§  179-182,  256-258,  264,  265;  Bigelow,  Estop.  440: 
Sedg.  &  W.  Tr.  Title  Land,  §  850.  While  in  some  of  the  cases  last  cited  there 
had  been  an  eviction  of  the  covenantee  after  he  had  been  in  possession,  that 
would  not  distinguish  such  cases  from  that  now  before  us.  The  inability  of 
the  plaintiffs  to  enter  into  possession  of  this  vacant  land  without  committing 
a  trespass,  by  reason  of  the  paramount  title  being  in  another,  would  have 
the  same  effect,  as  respects  the  right  of  action  for  a  breach  of  the  co\'cnants 
contained  in  the  deed,  as  would  an  eviction  if  possession  had  been  acquired. 
Fritz  V.  Pusey,  31  Minn.  368,  (18  N.  W.  Rep.  94) ;  Shattuck  v.  Lamb.  65  X.  Y. 
499. 

"  To  our  minds  the  authorities  last  cited  present  the  view  of  the  law  mo.-^t 
consistent  with  rea.son  and  with  familiar  legal  principles,  as  well  as  the  rule 
most  conducive  to  justice,  in  its  practical  application. 

"  It  is  certain,  if  the  defendant's  deed  conveyed  no  title,  that  the  plaintiffs 
had  a  legal  right,  when  this  action  was  commenced,  to  recover  the  purchase 
price  paid  for  a  title.  They  elected  to  pursue  that  remedy,  and  .><till  insist 
upon  the  legal  right.  We  cannot  imderstand  how  that  perfect,  absolute  legal 
right  of  action,  and  especially  after  an  action  has  been  already  instituted, 
is  defeated;  how  the  right,  at  the  election  of  the  grantee,  to  enforce  his 
action  for  the  breach  of  the  covenant  is  taken  away  or  lost  by  any  proper 
application  of  the  principle  that  an  after-acquired  title  inures  to  the  benefit 
of  the  grantee,  by  force  of  his  covenants,  and  upon  principles  embraced 
within  the  general  doctrine  of  estoppel.  We  do  not  concur  in  the  proposi- 
tion that  the  principle  just  referred  to  is  effectual  to  actually  transfer  and 
vest  in  the  covenantee  an  estate  acquired  by  the  covenantor  subsequent  to 
his  conveyance.  See,  in  addition  to  the  authorities  above  cited,  Buckingham 
V.  Hanna,  2  Ohio  St.  551 ;  Burtners  v.  Keran,  24  Grat.  42.  67;  Chew  v.  Bnrnet, 
11  Serg.  it  R.  389,  391.  Indeed,  that  the  estate  is  thus  actually  transferred 
to  the  covenantee,  without  resting  in  the  covenantor,  to  whom  the  after- 


780  WHITE    V.    PATTEN  [CHAP.   XII 


WHITE  V.  PATTEN 
24  Pick.  (Mass.)  324.     1837. 

Writ  of  entry  to  recover  a  messuage  in  Brookline. 

On  a  case  stated,  it  appears,  that  both  parties  claim  under  Isaac 
Thayer. 

The  demandant  derives  his  title  from  a  mortgage  made  to  him  by 
Thayer,  dated  the  30th  of  December,  1833,  and  recorded  on  the  19th 
of  February,  1834,  containing  the  usual  covenants  of  seisin,  war- 
ranty, &c. 

At  the  time  of  the  execution  of  the  mortgage  to  the  demandant,  the 
legal  title  was  in  John  Perry,  the  father-in-law  of  Thayer.  Perry 
conveyed  to  Thayer  in  fee  simple,  by  deed  dated  the  20th  of  July, 
1834,  and  delivered  on  the  2d  of  August,  in  the  forenoon. 

The  tenant  derives  his  title  from  a  mortgage  made  to  him  by 
Thayer,  dated  the  21st  of  July,  1834,  and  delivered  on  the  2d  of 
August,  1834,  in  the  afternoon,  containing  the  usual  covenants  of 
seisin,  warranty,  &c.  This  mortgage,  and  the  deed  from  Perry  to 
Thayer,  were  left  for  registry  at  the  same  time,  in  the  afternoon 
of  the  2d  of  August. 

Thayer  was  in  possession  at  the  time  of  making  the  mortgage  to 
the  demandant,  and  continued  in  possession  until  the  13th  of  Febru- 

acquired  title  is  in  terms  conveyed,  is  inconsistent  with  the  idea  of  an  estoppel 
binding  the  latter  and  those  in  privity  with  him;  and  yet  it  is  not  to  be 
doubted  that  the  doctrine  which  we  are  considering  really  rests  upon  the 
ground  of  estoppel.  It  is  founded  on  equitable  principles,  and  affords  to  a 
grantee  with  covenants  a  remedy  of  an  equitable  nature  with  respect  to  a 
title  acquired  by  the  grantor  after  he  had  assumed  to  convey  the  same;  and 
doubtless  courts  of  law,  at  this  day,  recognize  and  apply  the  principle  of 
estoppel,  in  such  eases,  as  courts  of  equity  are  wont  to  do.  They  will  treat 
the  after-acquired  title  as  though  it  had  been  conveyed,  when  equity  would 
decree  that  a  conveyance  be  made.  Rawle,  Gov.  §  258.  But  this  equitable 
right  is  one  in  favor  of  the  covenantee,  resting  upon  the  estoppel  of  the  cove- 
nantor to  assert,  as  against  him,  a  title  to  the  property.  If  the  grantee  ac- 
quires nothing  by  the  deed  to  him,  and  has  and  asserts  a  legal  cause  of  action 
for  covenant  broken,  no  principle  of  estoppel  operates  against  him,  to  compel 
him,  perhaps  years  afterwards,  as  in  this  case,  to  accept,  in  satisfaction  of 
that  legal  cause  of  action,  wholly  or  partially,  a  title  which  his  covenantor 
may  then  procure.  The  latter,  whose  covenant  has  been  wholl}^  broken,  has 
no  right  to  elect,  as  against,  the  covenantee,  and  to  his  prejudice,  whether  he 
will  respond  in  damages  for  the  breach  by  repaying  the  purchase  money,  or 
buy  in  the  paramount  title,  when  the  value  of  the  property  may  have  greatly 
depreciated,  and  compel  the  plaintiff  to  accept  that  title.  The  right  of  elec- 
tion is,  and  should  be,  with  the  other  party.  He  has  the  benefit  of  the  es- 
toppel, but  it  is  not  to  be  imposed  upon  him  as  a  burden,  at  the  will  of  the 
party  who  alone  is  subject  to  the  estoppel.  He  may  elect  to  pursue  the  ac- 
tion at  law,  and  recover  the  consideration  paid  for  a  title  which  was  not 
conveyed  to  him.  At  least,  he  may  so  elect,  as  the  plaintiffs  did  in  this  case, 
at  any  time  before  the  acquisition  of  the  title  by  the  covenantor." 


WHITE    V.    PATTEN  781 

ary,  1835,  when  the  demandant  entered  nnder  his  mortgage;  and 
the  demandant  remained  in  possession,  by  Thayer,  who  became  his 
tenant,  until  Thayer  was  dispossessed  by  Patten,  by  a  writ  of  habere 
facias  on  a  judgment  against  Thayer,  The  demandant  had  no  actual 
notice  of  Thayer's  want  of  title,  at  the  time  when  Thayer  conveyed 
to  him,  and  Patten  had  no  actual  notice  of  that  conveyance  at  the 
time  when  Thayer  conveyed  to  Patten. 

Judgment  Avas  to  be  entered  for  the  demandant  or  the  tenant, 
according  to  the  opinion  of  the  court,  on  the  foregoing  facts. 

Putnam,  J.,  afterward  drew  up  the  opinion  of  the  court.  If  the 
controversy  were  between  Thayer  and  White,  it  would  be  perfectly 
clear  that  Thayer  could  not  prevail,  notwithstanding  the  legal  title 
were  in  Perry,  at  the  time  when  Thayer  conveyed  to  White.  Thayer, 
having  subsequently  acquired  the  legal  title,  would  be  estopped  to 
say  that  he  was  not  seised  in  fee  of  the  estate  which  he  had  con- 
veyed with  warranty  to  White.    Somes  v.  Skinner,  3  Pick.  60. 

It  is  then  to  be  considered,  whether  the  tenant,  who  claims  the- 
same  estate  as  the  grantee  of  Thayer,  by  a  subsequent  conveyance 
of  the  same,  is  estopped  to  say  that  Thayer  was  not  seised,  inasmuch 
as  Thayer  himself  would  be  clearly  so  estopped,  if  he  were  a  party. 

In  1  Salk.  276,  Trevivnn  v.  Lawrence  et  al.,  it  was  held,  that 
parties  and  all  claiming  under  them  were  bound  by  estoppels;  "as 
if  a  man  makes  a  lease  by  indenture  of  D.,  in  which  he  hath  nothing, 
and  afterwards  purchases  D.  in  fee,  and  afterwards  bargains  and 
sells  it  to  A.  and  his  heirs,  A.  shall  be  bound  by  the  estoppel;  and 
that  where  the  estoppel  works  on  the  interest  in  the  land,  it  runs 
with  the  land  into  whose  hands  soever  the  land  comes." 

So  in  6  Mod.  258,  s.  c.  Lord  Chief  Justice  Holt  states  the  case 
thus :  "  If  a  man  by  deed  indented  make  a  lease  of  Dale,  reserving 
rent,  in  which  at  that  time  he  has  nothing,  and  afterwards  he  pur- 
chases Dale,  and  bargains  and  sells  it  to  a  stranger,  the  bargainee 
shall  hold  it  liable  to  the  first  lease,  and  coming  under  him  who 
made  the  lease  shall  be  estopped  to  say  that  the  bargainor  had  nothing 
to  let  in  the  premises  at  the  time  of  the  lease  made;  for  this  estoppel 
runs  upon  the  land  and  alters  the  interest  of  it," 

The  case  of  Fairhanls  et  al.  v.  Williamson,  7  Greenleaf,  96,  is  in 
point.  On  the  15th  of  December,  1818,  Weston  made  a  deed  to 
Webster.  The  demandants  levied  an  execution  upon  the  demanded 
premises  as  belonging  to  Webster,  in  July,  1S27,  and  Webster  re- 
leased to  the  demandants  on  the  27th  of  August  following.  When 
Weston  made  his  deed  to  Webster,  he  (Weston)  had  no  title,  but  it 
was  in  the  Commonwealth.  But  in  June,  1820,  the  committee  for 
the  sale  of  eastern  lands  conveyed  the  title  of  the  Commonwealth  to 
Weston.  Weston,  on  the  lOtli  of  May,  1821,  conveyed  the  d(>manded 
premises  to  the  tenant  in  fee.  And  it  was  held  that  Weston,  by  his 
deed  and  covenant  (although  it  was  not  of  general  warranty,  as  is 
the  case  at  bar)  was  estopped  to  make  any  claim  or  title  to  the  land, 


782  WHITE    V.    PATTEN  [CHAP.   XII 

and  that  the  tenant,  claiming  subsequently  under  "Weston,  was  privy 
in  estate  and  bound  by  the  estoppel. 

The  case  of  Weale  v.  Lower,  Pollexfen,  60,  is  to  the  same  point. 
Where  one  conveyed  by  a  fine  an  estate  which  at  the  time  was  con- 
tingent, yet  the  party  conveying  was  bound  by  estoppel,  and  when 
the  contingency  happened,  that  "  which  at  the  beginning  was  only 
good  against  him  by  estoppel  would  then  have  been  turned  into  a 
good  estate  and  term  in  interest."  And  p.  66,  per  Lord  Chief  Jus- 
tice Hale :  "  The  estate  which  cometh  to  the  heir  upon  the  happen- 
ing of  the  contingency,  feeds  his  estoppel,  and  the  estate  by  estoppel 
becometh  an  estate  in  interest,  and  shall  be  of  the  same  effect  as  if 
the  contingency  had  happened  before  the  fine  levied." 

So  in  the  case  at  bar,  Thayer  and  his  heirs  and  assigns  are  bound 
by  his  deed  with  warranty  to  White.  The  tenant  claims  the  same 
estate  as  the  assignee  or  grantee  of  Thayer  by  a  subsequent  convey- 
ance, and  the  tenant  is  concluded,  as  his  grantor  was  concluded,  to 
•aver  that  Thayer  had  no  title  when  he  conveyed  to  White.  The 
tenant  is  privy  in  estate. 

Co.  Lit.  352  a.  Privies  in  blood,  as  the  heir,  privies  in  estate,  as 
the  feoifee,  lessee,  &c.,  privies  in  law,  comprehending  those  who  come 
in  by  act  in  law  or  in  the  post,  shall  be  bound  and  take  advantage  of 
estoppels. 

Termes  de  la  Ley,  Privy.  "  The  lessees  or  feoffees  are  called  pri- 
vies in  estate,  and  so  are  their  heirs." 

The  conveyance  of  the  title  by  the  deed  of  Perry  to  Thayer,  after 
his  deed  to  White,  turned  the  estoppel  which  bound  Thayer  and  his 
heirs  and  assigns,  into  a  good  estate  in  interest.  So  that  by  the 
operation  of  law  the  interest  should  be  considered  as  vested  in  him 
in  the  same  manner  as  if  it  had  been  conveyed  to  Thayer  before  he 
conveyed  to  White.  And  if  that  had  been  the  case  there  could  be  no 
question  between  these  parties  now  before  the  court.  For  White 
procured  his  deed  from  Thayer  to  be  recorded  before  the  tenant 
obtained  his  deed  from  Thayer. 

It  would  be  very  easy  to  multiply  authorities  in  support  of  the 
principle  upon  which  this  case  is  decided,  but  it  is  not  necessary. 
The  court  are  of  opinion,  for  the  reasons  and  upon  the  authorities 
before  referred  to,  and  cited  by  the  counsel  for  the  demandant, 
that  he  is  entitled  to  recover.^ 

1  Tejft  V.  Munson,  57  N.  Y.  97;  McCusker  v.  McEvey,  9  R.  I.  528.  10 
R.  I.  606;  Jarvis  v.  Aikens,  25  Vt.  635,  accord.  See  Hodges  v.  Goodspeed,  20 
R.  I.  537. 

Contra,  Wheeler  v.  Young,  76  Conn.  44;  Calder  v.  Chapman,  52  Pa.  359; 
Breen  v.  Morehead,  104  Tex.  254.  See  Way  v.  Arnold,  18  Ga.  181 ;  Morrison 
V.  Caldwell,  5  T.  B.  Men.  (Ky.)  426.  433-434;  Ford  v.  Unity  Society,  120 
Mo.  498;  Richardson  v.  Lumber  Co.,  93  S.  C.  254. 

Compare  Balch  v.  Arnold,  9  Wyo.  17,  37-39  (under  system  of  recording  in 
western  states). 

In  the  following  cases  the  grantee  under  a  deed  by  a  grantor  having  no 


AYER    V.    PHILA.    &    BOSTON    FACE   BRICK    CO.  783 


AYEK  V.  PHILADELPHIA  a.xd  BOSTOX  FACE  BRICK 

COMPANY 

159  Mass.  84.     1893. 
Wbit  of  entry  to  foreclose  a  mortgage.^ 

One  "Waterman  made  a  first  mortgage  and  later  a  .second  mortgage. 

The  first  was  foreclosed,  and  the  land  sub.sequently  was  reconveved 
to  him.  Then  the  holder  of  the  second  mortgage  conveyed  to  a  third 
person  who  conveyed  to  the  demandant.  The  tenant  is  a  grantee 
under  Waterman.  In  the  granting  part  of  this  second  mortgage  the 
land  is  stated  to  be  "  conveyed  subject  "  to  a  certain  right  of  drain- 
age, a  certain  easement,  "  and  the  mortgage  hereinafter  named."  The 
covenants  are  as  follows:  "And  I,  the  said  grantor,  for  myself  and 
my  heirs,  executors,  and  administrators,  do  covenant  Avith  the  said 
grantees  and  their  heirs  and  assigns,  that  I  am  lawfully  seised  in 
fee  simple  of  the  aforegranted  premises;  that  they  are  free  from  all 
encumbrances,  except  a  certain  mortgage  given  by  me  to  the  Boston 
Five  Cents  Savings  Bank,  dated  March  1,  1872,  to  secure  the  sum  of 
forty  thousand  dollars,  the  right  of  drainage  and  the  easement  afore- 
said ;  that  I  have  good  right  to  sell  and  convey  the  same  to  the  said 
grantees,  and  their  heirs  and  assigns  forever,  as  aforesaid;  and  that 
I  will,  and  my  heirs,  executors,  and  administrators  shall,  warrant 
and  defend  the  same  to  the  said  grantees  and  their  heirs  and  assigns 
for  ever,  against  the  lawful  claims  and  demands  of  all  persons,  ex- 
cept the  right  of  drainage  and  the  easement  aforesaid." 

Holmes,  J.  When  this  case  was  before  us  the  first  time,  157 
Mass.  57,  it  was  assumed  by  the  tenant  that  the  only  question  was 
whether  the  covenant  of  warranty  in  the  second  mortgage  should  be 
construed  as  warranting  against  the  first  mortgage.  No  attempt  was 
made  to  deny  that,  if  it  was  so  construed,  the  title  afterwards 
acquired  by  the  mortgagor  would  inure  to  the  benefit  of  the  second 
mortgagee  under  the  established  American  doctrine.  The  tenant  now 
desires  to  reopen  the  agreed  facts  for  the  purpose  of  showing  that 
after  a  breach  of  the  covenant  in  the  second  mortgage,  and  before  lie 


title  was  competing  for  the  after-acquired  title  with  judgment  creditors  of 
the  grantor:  Watkim^  v.  T^^a^^s(7/,  15  Ark.  73;  Blh^  v.  Brotim,  78  Kan.  467; 
Callcgher  v.  Stem,  250  Pa.  292;  Broim  v.  Barker,  35  Okla.  498;  Blackwell  v. 
Harrehoyi,  99  S.  C.  264. 

A  without  title  gives  a  warranty  deed  to  B.  C,  the  tnie  owTier,  later  sells 
the  land  to  A  and  takes  back  from  A  at  the  ?ame  time  a  mortgage  without 
notice  of  B's  deed.  C  prevails  over  B.  Haxlam  v.  Jnrdnti.  104  Me.  49; 
Hefjron  v.  Flanigan,  37  Mich.  274;  Schoch  v.  Birdsall.  48  Minn.  441. 

^  The  statement  of  facts  is  taken  from  the  oiiinion  of  Holmes.  ./..  in  the 
same  case  when  before  the  covu-t  for  the  fir.>^t  time  as  reported  in  157  Mass. 
57.  The  court  then  held,  that  the  covenant  of  warranty  made  by  Waterman 
in  his  second  mortgage  covered  the  existing  first  mortgage. 


784       AVER    V.    PHILA.    &    BOSTON    FACE   BRICK    CO.        [CHAP.   XII 

repurchased  the  land,  the  mortgagor  went  into  bankruptcy  and  got 
his  discharge.  The  judge  below  ruled  that  the  discharge  was  im- 
material, and  for  that  reason  alone  declined  to  reopen  the  agreed 
statement,  and  the  case  comes  before  us  upon  an  exception  to  that 
ruling. 

The  tenant's  counsel  frankly  avow  their  own  opinion  that  the  dis- 
charge in  bankruptcy  makes  no  difference.  But  they  say  that  the 
inuring  of  an  after  acquired  titje  by  virtue  of  a  covenant  of  warranty 
must  be  due  either  to  a  representation  or  to  a  promise  contained  in 
the  covenant,  and  that  if  it  is  due  to  the  former,  which  they  deem 
the  correct  doctrine,  then  they  are  entitled  to  judgment  on  the  agreed 
statement  of  facts  as  it  stands,  on  the  ground  that  there  can  be  no 
estoppel  by  an  instrument  when  the  truth  appears  on  the  face  of  it, 
and  that  in  this  case  the  deed  showed  that  the  grantor  was  convey- 
ing land  subject  to  a  mortgage.  If,  however,  contrary  to  their 
opinion,  the  title  inures  by  reason  of  the  promise  in  the  covenant, 
or  to  prevent  circuity  of  action,  then  they  say  the  provision  is  dis- 
charged by  the  discharge  in  bankruptcy. 

HoAvever  anomalous  what  we  have  called  the  American  doctrine 
may  be,  as  argued  by  Mr.  Rawle  and  others  (Eawle  on  Covenants, 
5th  ed.,  §§  247  et  seq.),  it  is  settled  in  this  State  as  well  as  elsewhere. 
It  is  settled  also  that  a  discharge  in  bankruptcy  has  no  effect  on 
this  operation  of  the  covenant  of  warranty  in  an  ordinary  deed  where 
the  warranty  is  coextensive  with  the  grant.  Bush  v.  Cooper,  18 
How.  82;  Buss  v.  Alpaugh,  118  Mass.  369,  376;  Gihhs  v.  Thayer, 
6  Cush.  30;  Cole  v.  Raymond,  9  Gray  217;  Rawle  on  Covenants, 
(5th  ed.,)  §  251.  It  would  be  to  introduce  further  technicality  into 
an  artificial  doctrine  if  a  different  rule  should  be  applied  where  the 
conveyance  is  of  land  subject  to  a  mortgage  against  which  the  grantor 
covenants  to  warrant  and  defend.  No  reason  has  been  offered  for 
such  a  distinction,  nor  do  we  perceive  any. 

But  it  is  said  that  the  operation  of  the  covenant  must  be  rested  on 
some  general  principle,  and  cannot  be  left  to  stand  simply  as  an 
unjustified  peculiarity  of  a  particular  transaction  without  analogies 
elsewhere  in  the  law,  and  that  this  general  principle  can  be  found 
only  in  the  doctrine  of  estoppel  by  representation,  if  it  is  held,  as 
the  cases  cited  and  many  others  show,  that  the  estoppel  does  not  de- 
pend on  personal  liability  for  damages.  Rawle  on  Covenants, 
(5th  ed.)  §  251. 

If  the  American  rule  is  an  anomaly,  it  gains  no  strength  by  being 
referred  to  a  principle  which  does  not  justify  it  in  fact  and  by  sound 
reasoning.  The  title  may  be  said  to  inure  by  way  of  estoppel  when 
explaining  the  reason  why  a  discharge  in  bankruptcy  does  not  affect 
this  operation  of  the  warranty;  but  if  so,  the  existence  of  the  estoppel 
does  not  rest  on  the  prevention  of  fraud  or  on  the  fact  of  a  represen- 
tation actually  believed  to  be  true.  It  is  a  technical  effect  of  a 
technical  representation,  the  extent  of  Avhich  is  determined  by  the 


AYER    V.    PHILA.    &    BOSTON   FACE   BRICK    CO.  785 

scope  of  the  words  devoted  to  making  it.  A  subsequent  title  would 
inure  to  the  grantee  when  the  grant  Avas  of  an  unencumbered  fee 
although  the  parties  agreed  by  parol  that  there  was  a  mortgage  out- 
standing; {Chamberlain  v.  Meeder,  16  N.  H.  381,  384;  see  Jenkins 
V.  Collard,  145  TJ.  S.  546,  560;)  and  this  shoAvs  that  the  estoppel  is 
determined  by  the  scope  of  the  conventional  assertion,  not  by  any 
question  of  fraud  or  of  actual  belief.  But  the  scope  of  the  conven- 
tional assertion  is  determined  by  the  scope  of  the  warranty  which 
contains  it.  Usually  the  warranty  is  of  what  is  granted,  and  there- 
fore the  scope  of  it  is  determined  by  the  scope  of  the  description. 
But  this  is  not  necessarily  so;  and  when  the  warranty  says  that  the 
grantor  is  to  be  taken  as  assuring  you  that  he  owns  and  will  defend 
you  in  the  unencumbered  fee,  it  does  not  matter  that  by  the  same  deed 
he  avows  the  assertion  not  to  be  the  fact.  The  warranty  is  intended 
to  fix  the  extent  of  responsibility  assumed,  and  by  that  the  grantor 
makes  himself  answerable  for  the  fact  being  true.  In  short,  if  a 
man  by  a  deed  says,  I  hereby  estop  myself  to  deny  a  fact,  it  does  not 
matter  that  he  recites  as  a  preliminary  that  the  fact  is  not  true. 
The  diiference  between  a  warranty  and  an  ordinary  statement  in  a 
deed  is,  that  the  operation  and  eifect  of  the  latter  depends  on  the 
whole  context  of  the  deed,  whereas  the  warranty  is  put  in  for  the 
express  purpose  of  estopping  the  grantor  to  the  extent  of  its  words. 
The  reason  "  why  the  estoppel  should  operate,  is,  that  such  was  the 
obvious  intention  of  the  parties."  Blal-e  v.  Tucker,  12  Vt.  39,  45. 
If  a  general  covenant  of  warranty  following  a  conveyance  of  only 
the  grantor's  right,  title,  and  interest  were  made  in  such  a  form  that 
it  was  construed  as  more  extensive  than  the  convej'-ance,  there  would 
be  an  estoppel  coextensive  with  the  covenant.  See  B I  an  chard  v. 
Brooks,  12  Pick.  47,  66,  67;  Bigelow,  Estoppel,  (5th  ed.)  403.  So 
in  the  case  of  a  deed  by  an  heir  presumptive  of  his  expectancy  with 
a  covenant  of  warranty.  In  this  case,  of  course,  there  is  no  pretence 
that  the  grantor  has  a  title  coextensive  with  his  warranty.  Trull  v. 
Eastman,  3  Met.  121,  124.  In  Lincoln  v.  Emerson,  108  "Mass.  87, 
a  first  mortgage  was  mentioned  in  the  covenant  against  eiicumbi-ances 
in  a  second  mortgage  but  was  not  excepted  from  the  covenant  of 
warranty.  The  title  of  the  mortgagor  under  a  foreclosure  of  the 
first  mortgage  was  held  to  inure  to  an  assignee  of  the  second  mortgage. 
Here  the  deed  disclosed  the  truth,  and  foi-  tlio  purposes  of  the  tfMianf's 
argument  it  cannot  matter  Avhat  part  of  tlic  deed  discloses  the  truth, 
unless  it  should  be  suggested  that  a  covcMiant  of  warranty  cannot  be 
made  more  extensive  than  the  grant,  which  was  held  not  to  be  the 
law  ill  our  former  decision.  Sei^  also  Calrcrl  v.  Schriqhi ,  l.">  Beav. 
156,  160.^ 

The  question  remains  whether  the  tenant  stainls  l)etter  as  a  jmr- 
chaser  without  actual  notice,  assuming  tlial  lie  liad  not  actual  notice 
of  the  second  mortgage. 

1  See  Drury  v.  Holdcn,  121  111.  130;  MrAdams  v.  BalUii.  169  Iiul  518; 
Koch  V.  Ilnxli^,  113  Wis.  604. 


786  PERKINS    V.  COLEMAN  [CHAP.   XII 

"  It  has  boon  the  settled  law  of  this  Commonwealth  for  nearly 
forty  years,  that,  under  a  deed  with  covenants  of  warranty  from  one 
capable  of  executing  it,  a  title  afterwards  acquired  by  the  grantor 
inures  by  way  of  estoppel  to  the  grantee,  not  only  as  against  the 
grantor,  but  also  as  against  one  holding  by  descent  or  grant  from 
him  after  acquiring  the  new  title.  Somes  v.  Skinner,  3  Pick.  52- 
White  V.  Patten,  24  Pick.  324;  Russ  v.  Alpaugh,  118  Mass.  369,  376'. 
We  are  aware  that  this  rule,,  especially  as  applied  to  subsequent 
grantees,  while  followed  in  some  States,  has  been  criticised  in  others. 
See  Eawle  on  Covenants,  (4th  ed.)  427  et  seq.  But  it  has  been  too 
long  established  and  acted  on  in  Massachusetts  to  be  changed,  except 
by  legislation."  Knight  v.  Thayer,  125  Mass.  25,  27.  See  Powers 
V.  Patten,  71  Maine,  583,  587,  589;  McCusker  v.  McEvey,  9  K.  I. 
528 ;  Teift  v.  Munson,  57  N".  Y.  %1} 

It  is  urged  for  the  tenant  that  this  rule  should  not  be  extended. 
But  if  it  is  a  bad  rule,  that  is  no  reason  for  making  a  bad  exception 
to  it.  As  the  title  would  have  inured  as  against  a  subsequent  pur- 
chaser from  the  mortgagor  had  his  deed  made  no  mention  of  the 
mortgage,  and  as  by  our  decision  his  covenant  of  warranty  operates 
by  way  of  estoppel  notwithstanding  the  mention  of  the  mortgage, 
no  intelligible  reason  can  be  stated  why  the  estoppel  should  bind  a 
purchaser  without  actual  notice  in  the  former  case,  and  not  bind  him 
in  the  latter. 

Upon  the  whole  case,  we  are  of  opinion  that  the  demandant  is  en- 
titled to  judgment.  Our  conclusion  is  in  accord  with  the  decision  in 
a  very  similar  case  in  Minnesota.  Sandwich  Manuf.  Co.  v.  Zellmer, 
48  Minn.  408.  ,  .        Exceptions  overruled.'^ 


PEEKINS  V.  COLEMAN" 
90  Ky.  611.    1890. 

Judge  Bennett  delivered  the  opinion  of  the  court. 

W.  G.  Terry  owned  an  undivided  interest  in  the  laud  in  contro- 
versy, and  conveyed  the  whole  of  it  to  Horace  Dunham  by  deed  of 
general  warranty.     Thereafter  Terry  inherited  that  part  of  the  land 

1  In  Philly  v.  Sanders,  11  Ohio  St.  490,  496,  the  court  said:  "  The  force  and 
effect  of  the  estoppel  is,  in  law,  just  as  binding  upon  a  subsequent  grantee  as 
it  is  upon  the  grantor;  and  upon  either  it  is  equally  obligatory  with  the  lan- 
guage of  the  deed  creating  the  first  grant,  or  conveyance.  An  obligation  of 
estoppel  binds  not  only  the  grantor  in  such  a  case,  but  his  heirs  and  sub- 
sequent grantees,  and  all  persons  privy  to  him.  It  adheres  to  the  land,  and 
is  transmitted  with  the  estate,  whether  the  same  passes  by  descent  or  pur- 
chase. And  the  estoppel  becomes,  and  forever  after  remains,  a  muniment 
of  the  title  so  acquired;  and  when  the  party  so  estopped  conveys  the  land, 
he  necessarily  conveys  it  subject  to  such  estoppel  in  the  hands  of  his  grantee." 
See  also  Doe  d.  Potts  v.  Dowdnll.  3  Houst.  (Del.)   369. 

2  See  Dye  v.  Thompson,  126  Mich.  597;  Rooney  v.  Koenig,  80  Minn.  483. 


PERKINS    V.    COLEMAN  787 

that  lie  did  not  OAvn,  and  this  action  of  ejectment  is  brought  by 
Terry's  heirs  to  recover  the  possession  of  that  part  of  the  land  thus 
inherited  from  the  appellee.  He  resists  the  right  of  the  appellants 
to  recover  the  said  land  upon  the  ground  that  the  title  that  Terry 
inherited  was  transferred  to  his  vendee  by  estoppel.  The  appellants 
contend  that  the  doctrine  of  estoppel  does  not  protect  strangers  to  the 
transaction;  but  only  the  parties  and  privies  are  bound  thereby; 
and  as  the  appellee  is  neither  party  nor  privy,  he  cannot  avail  himself 
of  the  estoppel  that  would  bar  the  appellants'  rights  as  against 
Dunham  or  his  privies. 

It  is  true  that  where  the  estoppel  merely  affects  the  consciences  of 
the  parties,  and  not  the  title,  it  does  not  operate  on  strangers  to  the 
transaction ;  but  where  it  "  works  an  interest  in  the  land  "  conveyed, 
"  it  runs  with  it,  and  is  a  title."  Where  it  clearly  appears  from  the 
writing  that  the  vendor  has  conveyed,  or  agrees  to  convey,  a  good 
and  sufficient  title,  and  not  merely  his  present  interest  in  the  land, 
the  agreement  runs  with  the  land,  and  repeats  itself  every  day;  and 
if  the  vendor,  at  the  time  of  the  conveyance,  has  not  title  to  the  land, 
but  subsequently  acquires  the  title,  it,  "  eo  instante,"  inures  to  the 
benefit  of  the  vendee  and  his  privies.  In  other  words,  it  is  immedi- 
ately transferred  by  the  law  of  estoppel  to  the  vendee  and  his  privies, 
because  by  the  contract,  which  daily  repeats  itself,  the  vendor's  title, 
whenever  acquired,  is  transferred  to  the  vendee  and  his  privies ;  conse- 
quently, a  stranger  to  the  transaction,  in  an  action  of  ejectment  by 
the  vendor  against  him,  where  he  must  recover  upon  the  strength 
of  his  title,  and  not  upon  the  weakness  of  his  adversary,  may  show 
that  he  has  thus  parted  with  his  title. 

The  judgment  is  affirmed.^ 

1  In  Somes  v.  Skinner,  3  Pick.  (Mas,s.)  52.  A  owned  a  parcel  of  land.  His 
son  B  purported  to  mortgage  this  to  X  by  deed  with  covenant  of  warranty. 
A  died  and  the  land  came  by  descent  to  B  and  C  his  brother.  C  was  in 
possession.  X  brought  a  writ  of  entry,  and  it  was  held,  that  he  was  entitled 
to  recover  a  moiety  of  the  land.  The  court  said  that  the  after-acquired  title 
passed  to  the  grantee  as  against  the  grantor,  and  those  claiming  under  the 
grantor,  "  and  against  mere  strangers  who  usurped  the  possession  without 
right  or  title." 


CHAPTER   XIII 
DEDICATION 

CINCINTfATI  V.  WHITE 
6  Pet.   (U.  S.)  431.     1832 

This  was  a  writ  of  error  to  the  Circuit  Court  of  the  District  of 
Ohio. 

The  case  came  before  the  court  on  a  bill  of  exceptions,  taken  by  the 
plaintiffs  in  error,  the  defendants  in  the  Circuit  Court,  to  the  in- 
structions given  by  the  court  to  the  jury  on  the  request  of  the  coun- 
sel for  the  plaintiffs  in  that  court;  and  to  the  refusal  of  the  court 
to  give  certain  instructions  as  prayed  for  by  the  defendants  below. 

In  the  opinion  of  the  court  no  decision  is  given  on  those  exceptions, 
save  only  on  that  which  presented  the  question  of  the  dedication  of 
the  land  in  controversy  for  the  use  of  the  city  of  Cincinnati ;  which, 
and  the  facts  of  the  case  connected  therewith,  are  fully  stated  in  the 
opinion  of  the  court.  The  arguments  of  the  counsel  in  the  case,  on 
the  matters  of  law  presented  by  the  exceptions,  are  therefore  neces- 
sarily omitted. 

Mr.  Justice  Thompson  delivered  the  opinion  of  the  court. 

The  ejectment  in  this  case  was  brought  by  Edward  White,  who  is 
also  the  defendant  in  error,  to  recover  possession  of  a  small  lot  of 
ground  in  the  city  of  Cincinnati,  lying  in  that  part  of  the  city 
usually  denominated  the  Common.  To  a  right  understanding  of  the 
question  upon  which  the  opinion  of  the  court  rests,  it  will  be  suffi- 
cient to  state  generally,  that  on  the  15th  of  October  in  the  year  1788, 
John  Cleves  Symmes  entered  into  a  contract  with  the  then  board  of 
treasury,  under  the  direction  of  Congress,  for  the  purchase  of  a  large 
tract  of  land,  then  a  wilderness,  including  that  where  the  city  of 
Cincinnati  now  stands.  Some  negotiations  relative  to  the  payments 
for  the  land  delayed  the  consummation  of  the  contract  for  several 
years.  But  on  the  30th  of  September,  1794,  a  patent  was  issued 
conveying  to  Symmes  and  his  associates,  the  land  contracted  for; 
and  as  Symmes  was  the  only-  person  named  in  the  patent,  the  fee 
was  of  course  vested  in  him. 

Before  the  issuing  of  the  patent,  however,  and,  as  the  witnesses  say, 
in  the  year  1788,  Mathias  Denman  purchased  of  Symmes  a  part  of 
the  tract  included  in  the  patent,  and  embracing  the  land  whereon 
Cincinnati  now  stands.  That  in  the  same  year,  Denman  sold  one 
third  of  his  purchase  to  Israel  Ludlow,  and  one  third  to  Robert  Pat- 
terson.    These  three  persons,  Denman,  Ludlow  and  Patterson,  being 

788 


CINCINNATI    V.    WHITE  789 

the  equitable  owners  of  tlie  land  (iio  legal  title  having  been  granted), 
proceeded  in  January,  1789,  to  lay  out  the  town.  A  plan  was  made 
and  approved  of  by  all  the  proprietors;  and  according  to  which  the 
ground  lying  between  Front  Street  and  the  river,  and  so  located 
as  to  include  the  premises  in  question,  was  set  apart  as  a  common, 
for  the  use  and  benefit  of  the  town  forever,  reserving  only  the  right 
of  a  ferry;  and  no  lots  were  laid  out  on  the  land  thus  dedicated  as  a 
common. 

The  lessor  of  the  plaintiff  made  title  to  the  premises  in  question 
under  Mathias  Denman,  and  produced  in  evidence  a  copy,  duly 
authenticated,  of  the  location  of  the  fraction  17  from  the  books  of 
John  C.  Symmes  to  Mathias  Denman,  as  follows:  "1791,  April  4, 
Captain  Israel  Ludlow,  in  behalf  of  Mr.  Matliias  Denman  of  New 
Jersey,  presents  for  entry  and  location  a  warrant  for  one  fraction  of 
a  section,  or  one  hundred  and  seven  acres  and  eight  tenths  of  an  acre 
of  land,  by  virtue  of  which  he  locates  the  seventeenth  fractional  sec- 
tion in  the  fourth  fractional  township,  east  of  the  Great  Miami 
river,  in  the  first  fractional  range  of  townships  on  the  Ohio  river; 
number  of  the  warrant  192."  In  March,  1795,  Denman  conveyed  his 
interest,  which  was  only  an  equitable  interest,  in  the  lands  so  located 
to  Joel  Williams;  and  on  the  14th  of  February,  1800,  John  Cleves 
Symmes  conveyed  to  Joel  Williams  in  fee,  certain  lands  described 
in  the  deed  which  included  the  premises  in  question;  and  on  the  16th 
of  April,  1800,  Joel  Williams  conveyed  to  John  Daily  the  lot  now 
in  question.  And  the  lessor  of  the  plaintiff,  by  sundry  mesne  con- 
veyances, deduces  a  title  to  the  premises  to  himself. 

In  the  course  of  the  trial  several  exceptions  were  taken  to  the 
ruling  of  the  court,  with  respect  to  the  evidence  offered  on  the  part 
of  the  plaintiff  in  making  out  his  claim  of  title.  But  in  the  view 
which  the  court  has  taken  of  what  may  be  considered  the  substantial 
merits  of  the  case,  it  becomes  unnecessary  to  notice  those  exce])tions. 

The  merits  of  the  case  will  properly  arise  upon  one  of  the  instruc- 
tions given  by  the  court,  as  asked  by  the  plaintiff ;  and  in  refusing  to 
give  one  of  the  instructions  asked  on  the  part  of  the  defendant.  At 
the  request  of  the  plaintiff,  the  court  instructed  the  jury,  "  that  to 
enable  the  city  to  hold  this  ground  and  defend  themselves  in  this 
action  by  possession,  they  must  show  an  unequivocal,  uninterrupted 
possession  for  at  least  twenty  years." 

On  the  part  of  the  defendants,  the  court  was  asked  to  instrnct 
tlie  jury,  "that  it  was  competent  for  the  original  proprietors  of  the 
town  of  Cincinnati  to  reserve  and  dedicate  any  part  of  said  town 
to  public  uses,  without  granting  the  same  by  writing  or  deed  to  any 
particular  person;  by  which  reservation  and  dedication  the  whole 
estate  of  the  said  proprietors  in  said  land,  thus  reserved  and  dedi- 
cated, became  the  property  of,  and  was  vasted  in  the  imblic,  for  tlie 
purposes  intended  by  the  said  proprietors;  and  that,  by  such  dedi- 
cation and  reservation,  the  said  original  pro])rietors,  and  all  persons 
claiming  under  them,  are  estopped  from  asserting  any  claim  or  right 


790  CINCINNATI    V.    WHITE  [CHAP.   XIII 

to  the  said  land  thus  reserved  and  dedicated."  The  court  refused 
to  give  the  instruction  as  asked,  but  gave  the  following  instruction  : 

"  That  it  was  competent  for  the  original  proprietors  of  the  town  of 
Cincinnati  to  reserve  and  dedicate  any  part  of  said  town  to  public 
uses,  without  granting  the  same  by  writing  or  deed  to  any  particular 
person ;  by  which  reservation  and  dedication  the  right  of  use  to  such 
part,  is  vested  in  the  public  for  the  purposes  designated;  but  tha't 
such  reservation  and  dedication  do  not  invest  the  public  with  the  fee." 

The  ruling  of  the  court  to  be  collected  from  these  instructions  was, 
that  although  there  might  be  a  parol  reservation  and  dedication  to 
the  public  of  the  use  of  lands;  yet  such  reservation  and  dedication 
did  not  invest  the  public  with  the  fee;  and  that  a  possession  and  en- 
joyment of  the  use  for  less  than  twenty  years,  was  not  a  defence  in 
this  action. 

The  decision  and  direction  of  the  Circuit  Court  upon  those  points, 
come  up  on  a  writ  of  error  to  this  court. 

It  is  proper  in  the  first  place  to  observe,  that  although  the  land 
which  is  in  dispute,  and  a  part  of  which  is  the  lot  now  in  question, 
has  been  spoken  of  by  the  witnesses  as  having  been  set  apart  by  the 
proprietors  as  a  common,  we  are  not  to  understand  the  term  as  used 
by  them  in  its  strict  legal  sense ;  as  being  a  right  or  profit  which  one 
man  may  have  in  the  lands  of  another;  but  in  its  popular  sense,  as 
a  piece  of  ground  left  open  for  common  and  public  use,  for  the  con- 
venience and  accommodation  of  the  inhabitants  of  the  town. 

Dedications  of  land  for  public  purposes  have  frequently  come 
under  the  consideration  of  this  court ;  and  the  objections  which  have 
generally  been  raised  against  their  validity  have  been  the  want  of  a 
grantee  competent  to  take  the  title ;  applying  to  them  the  rule  which 
prevails  in  private  grants,  that  there  must  be  a  grantee  as  well  as  a 
grantor.  But  that  is  not  the  light  in  which  this  court  has  considered 
such  dedications  for  public  use.  The  law  applies  to  them  rules 
adapted  to  the  nature  and  circumstances  of  the  case,  and  to  carry 
into  execution  the  intention  and  object  of  the  grantor;  and  secure 
to  the  public  the  benefit  held  out,  and  expected  to  be  derived  from, 
and  enjoyed  by  the  dedication. 

It  was  admitted  at  the  bar,  that  dedications  of  land  for  charitable 
and  religious  purposes,  and  for  public  highways,  were  valid,  without 
any  grantee  to  whom  the  fee  could  be  conveyed.  Although  such  are 
the  cases  which  most  frequently  occur  and  are  to  be  found  in  the 
books,  it  is  not  perceived  how  any  well  grounded  distinction  can  be 
made  between  such  cases  and  the  present.  The  same  necessity  exists 
in  the  one  case  as  in  the  other,  for  the  purpose  of  effecting  the  object 
intended.  The  principle,  if  well  founded  in  the  law,  must  have  a 
general  application  to  all  appropriations  and  dedications  for  public 
use,  where  there  is  no  grantee  in  esse  to  take  the  fee.  But  this  forms 
an  exception  to  the  rule  applicable  to  private  grants,  and  grows  out 
of  the  necessity  of  the  case.  In  this  class  of  cases  there  may  be  in- 
stances, contrary  to  the  general  rule,  where  the  fee  may  remain  in 


CINCINNATI    V.    WHITE  791 

abeyance  until  there  is  a  grantee  capable  of  taking;  where  the 
object  and  purpose  of  the  appropriation  look  to  a  future  grantee  in 
whom  the  fee  is  to  vest.  But  the  validity  of  the  dedication  does  not 
depend  on  this;  it  will  preclude  the  party  making  the  appropriation 
from  reasserting  any  right  over  the  land;  at  all  events  so  long  as  it 
remains  in  public  use:  although  there  may  never  arise  any  grantee 
capable  of  taking  the  fee. 

The  recent  case  of  Bcatty  v.  Kurtz,  2  Peters,  566,  in  this  court,  is 
somewhat  analogous  to  the  present.  There  a  lot  of  ground  had  been 
marked  out  upon  the  original  plan  of  an  addition  to  Georgetown, 
"  for  the  Lutheran  Church,"  and  had  been  used  as  a  place  of  burial 
from  the  time  of  the  dedication.  There  was  not,  however,  at  the 
time  of  the  appropriation,  or  at  any  time  afterwards,  any  incorpo- 
rated Lutheran  church  capable  of  taking  the  donation. 

The  case  turned  upon  the  question,  whether  the  title  to  the  lot 
ever  passed  from  Charles  Beatty,  so  far  as  to  amount  to  a  perpetual 
appropriation  of  it  to  the  use  of  the  Lutheran  church.  That  was  a 
parol  dedication  only,  and  designated  on  the  plan  of  the  town.  The 
principal  objection  relied  upon  was,  that  there  was  no  grantee  capable 
of  taking  the  grant.  But  the  court  sustained  the  donation,  on  the 
ground  that  it  was  a  dedication  of  the  lot  to  public  and  pious  uses ; 
adopting  the  principle  that  had  been  laid  down  in  the  case  of  the 
Town  of  Pawlet  v.  Clarh,  9  Cranch,  292,  that  appropriations  of  this 
description  were  exceptions  to  the  general  rule  requiring  a  grantee. 
That  it  was  like  a  dedication  of  a  highway  to  the  public.  This 
last  remark  shows  that  the  case  did  not  turn  upon  the  Bill  of  Rights 
of  Maryland,  or  the  Statute  of  Elizabeth  relating  to  charitable  uses, 
but  rested  upon  more  general  principles;  as  is  evident  from  what 
fell  from  the  court  in  the  case  of  the  Toivn  of  Pawlet  v.  Clarh,  which 
was  a  dedication  to  religious  uses;  yet  the  court  said  this  was  not 
a  novel  doctrine  in  the  common  law.  In  the  familiar  case  where 
a  man  lays  out  a  street  or  public  highway  over  his  land,  there  is, 
strictly  speaking,  no  grantee  of  the  easement,  but  it  takes  effect  by 
way  of  grant  or  dedication  to  public  uses.  And  in  support  of  the 
principle,  the  case  of  Lade  v.  Shepherd,  2  Stra.  1004,  was  referred 
to;  which  was  an  action  of  trespass,  and  the  place  where  the  sup- 
posed trespass  was  committed,  was  formerly  the  property  of  the  plain- 
tiff, who  had  laid  out  a  street  upon  it,  which  had  continued  there- 
after to  be  used  as  a  public  highway;  and  it  was  insisted  on  the  part 
of  the  defendant,  that  by  the  ])laintiff's  making  a  street,  it  was  a 
dedication  of  it  to  the  public,  and  that,  although  he,  the  defendant, 
might  be  liable  for  a  nuisance,  the  plaintiff  could  not  sue  him  for  a 
trespass.  But  the  court  said,  it  is  certainly  a  dedication  to  the 
public,  so  far  as  the  public  has  occasion  for  it,  which  is  oidy  for  a 
right  of  passage;  but  it  never  Avas  understood  to  be  a  transfer  of  his 
absolute  property  in  the  soil. 

The  doctrine  necessarily  growing  out  of  that  case,  has  a  strong 
bearing  upon  the  one  now  before  the  court,  in  two  points  of  view. 


792  CINCINNATI    V.    WHITE  [CHAP.   XIII 

It  shows,  in  the  first  place,  that  no  deed  or  writing  was  necessary  to 
constitute  a  valid  dedication  of  the  easement.  All  that  was  done, 
from  anything  that  appears  in  the  case,  was  barely  laying  out  the 
street  by  the  owner,  across  his  land.  And  in  the  second  place,  that 
it  is  not  necessary  that  the  fee  of  the  land  should  pass,  in  order  to 
secure  the  easement  to  the  public.  And  this  must  necessarily  be  so 
from  the  nature  of  the  case,  in  the  dedication  of  all  public  highways. 
There  is  no  grantee  to  take  immediately,  nor  is  any  one  contemplated 
by  the  party  to  take  the  fee  at  any  future  day.  JSTo  grant  or  con- 
veyance can  be  necessary  to  pass  the  fee  out  of  the  owner  of  the 
land,  and  let  it  remain  in  abeyance  until  a  grantee  shall  come  in 
esse;  and  indeed  the  case  referred  to  in  Strange  considers  the  fee 
as  remaining  in  the  original  owner;  otherwise  he  could  sustain  no 
action  for  a  private  injury  to  the  soil,  he  having  transferred  to  the 
public  the  actual  possession. 

If  this  is  the  doctrine  of  the  law  applicable  to  highways,  it  must 
apply  with  equal  force,  and  in  all  its  parts,  to  all  dedications  of  land 
to  public  uses;  and  it  was  so  applied  by  this  court  to  the  reservation 
of  a  public  spring  of  water  for  public  use,  in  the  case  of  M'Connell 
V.  The  Trustees  of  the  Town  of  Lexington,  12  Wheat.  582.  The 
court  said ;  the  reasonableness  of  reserving  a  public  spring  for  pub- 
lic use,  the  concurrent  opinion  of  all  the  settlers  that  it  was  so  re- 
served, the  universal  admission  of  all  that  it  was  never  understood 
that  the  spring  lot  was  drawn  by  any  person,  and  the  early  appro- 
priation of  it  to  public  purposes ;  were  decisive  against  the  claim. 

The  right  of  the  public  to  the  use  of  the  common  in  Cincinnati, 
must  rest  on  the  same  principles  as  the  right  to  the  use  of  the  streets; 
and  no  one  will  contend,  that  the  original  owners,  after  having  laid 
out  streets,  and  sold  building  lots  thereon,  and  improvements  made, 
could  claim  the  easement  thus  dedicated  to  the  public. 

All  public  dedications  must  be  considered  with  reference  to  the 
use  for  which  they  are  made;  and  streets  in  a  town  or  city  may  re- 
quire a  more  enlarged  right  over  the  use  of  the  land,  in  order  to  carry 
into  effect  the  purposes  intended,  than  may  be  necessary  in  an  appro- 
priation for  a  highway  in  the  country;  but  the  principle,  so  far  as 
respects  the  right  of  the  original  owner  to  disturb  the  use,  must 
rest  on  the  same  ground  in  both  cases;  and  applies  equally  to  the 
dedication  of  the  common  as  to  the  streets.  It  was  for  the  public 
use,  and  the  convenience  and  accommodation  of  the  inhabitants  of 
Cincinnati;  and  doubtless  greatly  enhanced  the  value  of  the  private 
property  adjoining  this  common,  and  thereby  compensated  the 
owners  for  the  land  thus  thrown  out  as  public  grounds. 

And  after  being  thus  set  apart  for  public  use,  and  enjoyed  as  such, 
and  private  and  individual  rights  acquired  with  reference  to  it,  the 
law  considers  it  in  the  nature  of  an  estoppel  in  pais,  which  precludes 
the  original  o-v\Tier  from  revoking  such  dedication.  It  is  a  violation 
of  good  faith  to  the  public,  and  to  those  who  have  acquired  private 
property  with  a  view  to  the  enjoyment  of  the  use  thus  publicly 
granted. 


CINCIXXATI    V.    WHITE  793 

The  right  of  the  public  in  such  cases  does  not  depend  upon  a 
twenty  years'  possession.  Such  a  doctrine,  applied  to  public  high- 
ways and  the  streets  of  the  numerous  villages  and  cities  that  are  so 
rapidly  springing  up  in  every  part  of  our  country,  would  be  destruc- 
tive of  public  convenience  and  private  right. 

The  case  of  Jarvis  v.  Dean,  3  Bingham,  447,  shows  tluit  rights  of 
this  description  do  not  rest  upon  length  of  possession.  The  plain- 
tiff's right  to  recoA'er  in  that  case,  turned  upon  the  question  whether 
a  certain  street  in  the  parish  of  Islington  had  been  dedicated  to  the 
public  as  a  common  public  highway.  Chief  Justice  Best,  upon  the 
trial,  told  the  jury  that  if  they  thought  the  street  had  been  used 
for  years  as  a  public  thoroughfare,  with  the  assent  of  the  owner  of 
the  soil,  they  might  presume  a  dedication;  and  the  jury  found  a 
verdict  for  the  plaintiff,  and  the  court  refused  to  grant  a  new  trial, 
but  sanctioned  the  direction  given  to  the  jury  and  the  verdict  found 
thereupon;  although  this  street  had  been  used  as  a  public  road  only 
four  or  five  years;  the  court  saying,  the  jury  were  warranted  in  pre- 
suming it  was  used  with  the  full  assent  of  the  owner  of  the  soil. 
The  point  therefore  upon  which  the  establishment  of  the  public 
street  rested,  was  whether  it  had  been  used  by  the  public  as  such, 
with  the  assent  of  the  owner  of  the  soil;  not  whetber  such  use  had 
been  for  a  length  of  time,  which  would  give  the  right  by  force  of 
the  possession ;  nor  whether  a  grant  might  be  presumed ;  but  whether 
it  had  been  used  with  the  assent  of  the  owner  of  the  land;  neces- 
sarily implying,  that  the  mere  naked  fee  of  the  land  remained  in  the 
owner  of  the  soil,  but  that  it  became  a  public  street,  by  his  per- 
mission to  have  it  used  as  such.  Such  use,  however,  ought  to  be 
for  such  a  length  of  time  that  the  public  accommodation  and  private 
rights  might  be  materially  affected  by  an  interruption  of  the 
enjoyment. 

In  the  present  case,  the  fact  of  dedication  to  public  use,  is  not  left 
to  inference,  from  the  circumstance  that  the  land  has  been  enjoyed 
as  a  common  for  many  years.  But  the  actual  appropriation  for 
that  purpose  is  established  by  the  most  positive  and  conclusive  evi- 
dence. And  indeed  the  testimony  is  such  as  would  have  warranted 
the  jury  in  presuming  a  grant,  if  tliat  liad  been  necessary.  And  the 
fee  might  be  considered  in  abeyance,  until  a  competent  grantee 
appeared  to  receive  it;  which  was  as  early  as  the  year  1S02,  when 
the  cit}'^  was  incorporated.  And  the  common  having  then  been 
taken  under  the  charge  and  direction  of  the  trustees,  would  ho  am]dy 
sufficient,  to  show  an  acceptance,  if  that  was  necessary,  for  securing 
the  protection  of  the  public  right. 

But  it  has  been  argued,  that  this  api)ro]u-iation  was  a  nullity,  bt^ 
cause  the  proprietors,  Denman,  Ludlow  and  Patterson,  when  they 
laid  out  the  town  of  Cincinnati,  and  appropriated  this  ground  as  a 
common,  in  the  year  1789,  had  no  title  to  the  laud,  as  the  patent 
to  Symmes  was  not  issued  until  the  year  1704.  It  is  luidoubtedly 
true  that  no  legal  title  had  passed  from  the  United  States  to  Symmes. 


794  CINCINNATI   V.   WHITE  [CHAP.   XIII 

But  the  proprietors  had  purchased  of  Symmes  all  his  equitable  right 
to  their  part  of  the  tract  which  he  had  under  his  contract  with  the 
government.  This  objection  is  more  specious  than  solid,  and  does 
not  draw  after  it  the  conclusions  alleged  at  the  bar. 

There  is  no  particular  form  or  ceremony  necessary  in  the  dedica- 
tion of  land  to  public  use.  All  that  is  required  is  the  assent  of  the 
owner  of  the  land,  and  the  fact  of  its  being  used  for  the  public 
purposes  intended  by  the  appropriation.  This  was  the  doctrine  in 
the  case  of  Jarvis  and  Dean,  already  referred  to,  with  respect  to  a 
street;  and  the  same  rule  must  apply  to  all  public  dedications;  and 
from  the  mere  use  of  the  land,  as  public  land,  thus  appropriated,  the 
assent  of  the  owner  may  be  presumed.  In  the  present  case,  there 
having  been  an  actual  dedication  fully  proved,  a  continued  assent 
will  be  presumed,  until  a  dissent  is  shown;  and  this  should  be  satis- 
factorily established  by  the  party  claiming  against  the  dedication. 
In  the  case  of  Rex  v,  Lloyd,  1  Camp.  262,  Lord  Ellenborough  says, 
if  the  owner  of  the  soil  throws  open  a  passage,  and  neither  marks 
by  any  visible  distinction  that  he  means  to  preserve  all  his  rights 
over  it,  nor  excludes  persons  from  passing  through  it  by  positive 
prohibition,  he  shall  be  presumed  to  have  dedicated  it  to  the 
public. 

At  the  time  the  plan  of  the  town  of  Cincinnati  was  laid  out  by  the 
proprietors,  and  the  common  dedicated  to  the  public  use,  no  legal 
title  had  been  granted.  But  as  soon  as  Symmes  became  vested  with 
the  legal  title,  under  the  patent  of  1794,  the  equitable  right  of  the 
proprietors  attached  upon  the  legal  estate,  and  Symmes  became  their 
trustee,  having  no  interest  in  the  land  but  the  mere  naked  fee.  And 
the  assent  of  the  proprietors  to  the  dedication  continuing,  it  has  the 
same  effect  and  operation  as  if  it  had  originally  been  made  after 
the  patent  issued.  It  may  be  considered  a  subsequent  ratification 
and  affirmance  of  the  first  appropriation.  And  it  is  very  satisfac- 
torily proved,  that  Joel  Williams,  from  whom  the  lessor  of  the 
plaintiff  deduces  his  title,  well  understood,  when  he  purchased  of 
Denman,  and  for  some  years  before,  that  this  ground  had  been 
dedicated  as  a  public  common  by  the  proprietors.  The  original  plat, 
exhibiting  this  ground  as  a  common,  was  delivered  to  him  at  the 
time  of  the  purchase.  And  when  he  afterwards,  in  the  year  1800, 
took  a  deed  from  Symmes,  he  must,  according  to  the  evidence  in 
the  case,  have  known,  that  he  was  a  mere  trustee,  holding  only 
the  naked  fee.  And  from  the  notoriety  of  the  fact,  that  these 
grounds  were  laid  open  and  used  as  a  common:  it  is  fairly  to  be 
presumed,  that  all  subsequent  purchasers  had  full  knowledge  of 
the  fact. 

But  it  is  contended  that  the  lessor  of  the  plaintiff  has  shown  the 
legal  title  to  the  premises  in  question  in  himself,  which  is  enough  to 
entitle  him  to  recover  at  law;  and  that  the  defendants'  remedy,  if 
any  they  have,  is  in  a  court  of  equity.  And  such  was  substantially 
the  opinion  of  the  Circuit  Court,  in  the  fourth  instruction  asked  by 


CINCINNATI    V.   -VTHITE  795 

the  plaintiff,  and  given  by  the  court,  viz.  "  that  if  the  s^id  proprie- 
tors did  appropriate  said  ground,  having  no  tith»  thereto,  and  at't(>r- 
wards  acquired  an  equitable  title  only,  that  equitable  title  could  not 
inure  so  as  to  vest  a  legal  title  in  the  city  or  citizens,  and  enable 
them  to  defend  themselves  in  an  action  of  ejectment  brought  against 
them  by  a  person  holding  the  legal  title." 

We  do  not  accede  to  this  doctrine.  For  should  it  be  admitted,  that 
the  mere  naked  fee  was  in  the  lessor  of  the  plaintiff,  it  by  no  means 
follows  that  he  is  entitled  to  recover  possession  of  the  common  in  an 
action  of  ejectment. 

This  is  a  possessory  action,  and  the  plaintiff,  to  entitle  himself  to 
recover,  must  have  the  right  of  possession;  and  whatever  takes  away 
this  right  of  possession,  will  deprive  him  of  the  remedy  by  eject- 
ment.    Adams's  Eject.   32.     Starkie,  part   4,   506,  507. 

This  is  the  rule  laid  down  by  Lord  Mansfield  in  Atkins  v.  Uorde, 
1  Burr.  119.  An  ejectment,  says  he,  is  a  possessory  remedy,  and 
only  competent  where  the  lessor  of  the  plaintiff  may  enter;  and 
every  plaintiff  in  ejectment  must  show  a  right  of  possession  as  well 
as  of  property.  And  in  the  case  of  Doe  v.  Staple,  2  Durn.  and  East, 
684,  it  was  held,  that  although  an  outstanding  satisfied  term  may  be 
presumed  to  be  surrendered,  yet  an  unsatisfied  term,  raised  for  the 
])urpose  of  securing  an  annuity,  cannot,  during  the  life  of  the  annui- 
tant; and  may  be  set  up  as  a  bar  to  the  heir  at  law,  even  though 
he  claim  only  subject  to  the  charge.  Thereby  clearly  showing  the 
plaintiff  must  have,  not  only  the  legal  title,  but  a  clear  present  right 
to  the  possession  of  the  premises;  or  he  cannot  recover  in  an  action 
of  ejectment.  And  in  the  case  of  Doe  v.  Jackson,  2  Down,  and  Ryl. 
523,  Bayley,  Justice,  says,  "  an  action  of  ejectment,  which  from  first 
to  last  is  a  fictitious  remedy,  is  founded  on  the  principle,  that  the 
tenant  in  .possession  is  a  wrongdoer;  and  unless  he  is  so  at  the  time 
the  action  is  brought,  the  plaintiff  cannot  recover." 

If  then  it  is  indispensable  that  the  lessor  of  the  plaintiff  should 
show  a  right  of  possession  in  himself,  and  that  the  defendants  are 
Avrongdoers;  it  is  difficult  to  perceive  on  what  grounds  this  action 
can  be  sustained. 

The  later  authorities  in  England  Avhich  have  been  referred  to, 
leave  it  at  least  questionable,  Avhether  the  doctrine  of  Lord  Mans- 
field in  the  case  of  GoodtUle  v.  AJker.  1  Burr.  143,  "that  ejectment 
will  lie  by  the  owner  of  the  soil  for  land,  which  is  subject  to  a  pas- 
sage over  it  as  the  king's  highway;"  would  be  sustained  at  the 
present  day  at  "Westminster  Hall.  It  was  not  even  at  that  day  con- 
sidered a  settled  point,  for  the  counsel  on  the  argument  (page  140) 
referred  to  a  case,  said  to  have  been  decided  by  Lord  TTardwickc;  \u 
which  he  held  that  no  possession  could  be  delivered  of  tho  soil  of  a 
highway,  and  therefore  no  ejectment  would  lie  for  it. 

This  doctrine  of  Lord  Mansfield  has  crept  into  most  of  our  elemeji- 
tary  treatises  on  the  action  of  ejectment,  and  has  apparently,  in  some 
instances,  been  incidentally  sanctioned  by  judges.     But  we  arc  not 


796  CINCINNATI    V.    WHITE  [CHAP.   XIII 

aware  of  its  liaving  been  adopted  in  any  other  case  where  it  was  the 
direct  point  in  judgment.  No  such  case  was  referred  to  on  the  argu- 
ment, and  none  has  fallen  under  our  notice.  There  are,  however, 
several  cases  in  the  Supreme  Court  of  Errors  of  Connecticut,  where 
the  contrary  doctrine  has  been  asserted  and  sustained  by  reasons 
much  more  satisfactory  than  those  upon  which  the  case  in  Burrow 
is  made  to  rest.  Stiles  v.  Curtis,  4  Day  328;  Peck  v.  Smith,  1  Con. 
Eep.  103. 

But  if  we  look  at  the  action  of  ejectment  on  principle,  and  in- 
quire what  is  its  object,  it  cannot  be  sustained  on  any  rational 
ground.  It  is  to  recover  possession  of  the  land  in  question;  and  the 
judgment,  if  carried  into  execution,  must  be  followed  by  delivery 
of  possession  to  the  lessor  of  the  plaintiff. 

The  purpose  for  which  the  action  is  brought,  is  not  to  try  the 
mere  abstract  right  to  the  soil,  but  to  obtain  actual  possession;  the 
very  thing  to  which  the  plaintiff  can  have  no  exclusive  or  private 
right.  This  would  be  utterly  inconsistent  with  the  admitted  public 
right.  That  right  consists  in  the  uninterrupted  enjoyment  of  the 
possession.  The  two  rights  are  therefore  incompatible  with  each 
other,  and  cannot  stand  together.  The  lessor  of  the  plaintiff  seeks 
specific  relief,  and  to  be  put  into  the  actual  possession  of  the  land. 
The  very  fruit  of  his  action,  therefore,  if  he  avails  himself  of  it,  will 
subject  him  to  an  indictment  for  a  nuisance;  the  private  right  of 
possession  being  in  direct  hostility  with  the  easement,  or  use  ta 
which  the  public  are  entitled;  and  as  to  the  plaintiff's  taking  pos- 
session subject  to  the  easement,  it  is  utterly  impracticable.  It  is 
well  said,  by  Mr.  Justice  Smith  in  the  case  of  Stiles  v.  Curtis, 
that  the  execution  of  a  judgment  in  such  case,  involves  as  great  an 
inconsistency  as  to  issue  an  habere  facias  'possessionem  of  certain 
premises  to  A.,  subject  to  the  possession  of  B.  It  is  said,  cases  may 
exist  where  this  action  ought  to  be  sustained  for  the  public  benefit, 
as  where  erections  are  placed  on  the  highway,  obstructing  the  public 
use.  But  what  benefit  would  result  from  this  to  the  public?  It 
would  not  remove  the  nuisance.  The  effect  of  a  recovery  would  only 
be  to  substitute  another  offender  against  the  public  right,  but  would 
not  abate  the  nuisance.    That  must  be  done  by  another  proceeding. 

It  is  said  in  the  case  in  Burrow,  that  ^n  ejectment  could  be  main- 
tained because  trespass  would  lie.  But  this  certainly  does  not  follow. 
The  object  and  effect  of  the  recoveries  are  entirely  different.  The 
one  is  to  obtain  possession  of  the  land,  which  is  inconsistent  with  the 
enjoyment  of  the  public  right;  and  the  other  is  to  recover  damages 
merely,  and  not  to  interfere  with  the  possession,  which  is  in  perfect 
harmony  with  the  public  right.  So,  also,  if  the  fee  is  supposed  to 
remain  in  the  original  owner,  cases  may  arise  where  perhaps  waste 
or  a  special  action  on  the  case  may  be  sustained  for  a  private  injury 
to  such  owner.  But  these  are  actions  perfectly  consistent  with  the 
public  right.  But  a  recovery  in  an  action  of  ejectment,  if  carried 
into  execution,  is  directly  repugnant  to  the  public  right. 


REED    V.    NORTHFIELD  797 

Upon  tlie  whole,  the  opinion  of  the  court  is,  that  the  judgment 
must  be  reversed,  and  the  cause  sent  back,  with  directions  to  issue  a 
venire  de  novo. 


REED  V.  NORTHFIELD 
13  Pick.  (Mass.)  94.    1832  i 

This  was  an  action  on  the  case,  upon  Stat.  1786,  c.  81,  to  recover 
double  damages  for  an  injury  to  the  plaintiff,  caused  by  a  defect 
in  a  highway  in  the  town  of  Northfield. 

The  defect  complained  of  was  a  hole  in  the  road,  by  the  side  of  a 
small  bridge.  The  plaintiff  alleged  tluit  tlie  horse  on  which  he  was 
riding,  stepped  into  the  hole,  and  fell,  and  threw  the  plaintiff  over 
his  head. 

At  the  trial,  before  Morton,  J.,  it  was  agreed  that  the  road  had 
been  known  and  used  as  a  public  highway,  for  fifty  years  before  the 
injury  to  the  plaintiff,  and  as  such,  during  that  time,  had  been  re- 
paired by  the  town  of  JNTorthfield.  The  defendants  objected  to  the 
sufficiency  of  these  facts  to  show  such  a  highway  as  would  render 
the  defendants  liable  in  this  action ;  but  the  judge  overruled  the 
objection,  and  instructed  the  jury  that  they  were  sufficient. 

The  jury  returned  a  verdict  for  the  plaintiff,  :ni<l  the  defendants 
excepted. 

Shaw,  C.  J.,  afterward  drew  up  the  opinion  of  the  court.  On  the 
trial  of  this  action  against  the  town  of  Northfield,  for  injury  sus- 
tained by  the  plaintiff,  by  the  insufficiency  of  a  highway,  several  ob- 
jections were  taken  by  the  defendants  to  the  directions  of  the  judge 
in  matters  of  law,  which  have  now  been  considered. 

It  was  among  other  things  objected,  that  the  locus  in  (jun  was  not 
sufficiently  proved  to  be  a  highway,  by  the  facts  shown.  Th(\'*(>  facts 
were,  that  it  had  been  known  and  used  as  a  public  higliway  for  fifty 
years,  and  during  that  time  had  been  repaired  by  tlic  town.  It  is 
analogous  to  a  right  of  way,  or  other  easement;  wliicli,  it  has  l)een 
recently  decided,  may  be  held  by  prescription,  by  proving  a  u.se  for 
forty  years.  Kent  v.  Waltc,  10  Pick.  138;  Melvin  v.  WJiHinrj.  Ibid. 
295.  Whether  a  public  right  of  way  can  be  established  by  dedication 
and  tacit  adoption,  by  a  presumed  grant,  or  l)y  any  other  mode,  in  a 
period  short  of  forty  years,  we  do  not  now  give  any  opinion. 

But  if  an  uninterrupted  use  of  a  highway  and  tlie  support  of  it  by 
the  town  for  forty  years,  which  is  now  the  longest  term  of  ])rescri]i- 
tion  known  to  the  law,  would  not  establisli  it,  it  would  ho  equivalent 
to  declaring  that  there  can  be  no  liighway  ])rove(l  in  any  mode  l)nt 
by  the  record  of  its  being  laid  out;  which,  in  regard  to  many,  and 
those  the  most   important    and    ancient   highways   of   the   conmion- 

1  Part  only  of  the  case  is  given. 


798  '  REED    V.    NORTHFIELD  [CHAP.   XIII 

wealth,  would  be  utterly  impossible.  But  without  dwelling  upon 
the  supposed  inconvenience  of  a  different  rule,  we  think  it  clear  upon 
principle,  that  public  easements,  as  well  as  others,  may  be  shown  by 
long  and  uninterrupted  use  and  enjoyment,  upon  the  conclusive  legal 
presumption  from  such  enjoyment,  that  they  were,  at  some  anterior 
period,  laid  out  and  established  by  competent  authority. 

Note.  —  On  the  manj'  questions  arising  with  respect  to  the  difficult  sub- 
ject of  Dedication,  on  which  the  authorities  are  numerous  and  conflicting, 
see  3  Dillon,  Mun.  Corp.,  5th  ed.,  c.  XXIII;  2  Tiff.,  Real  Prop.,  2d  ed.,  §§ 
479-486,  533. 


ABSTRACT  OF  TITLE  IN  MASSACHUSETTS' 


564-275      Andrew  Kitchen 
Aug.  30,  to 

1849  Jas  Cunningham 

&  David  Cross 


$1,  etc.  Land  in  Roxbury 

H  &  A  Lot  2  on  pi  by  David  A.  Granger  dt 

Aug  1,  1S47  cont  102400  sq  ft  bnd 
WD  SW  by  Saratoga  Street  325, 

D  &  H  NW  by  Trenton  St        203, 

Patience  NE  by  lot  1  320,  & 

SE  by  road  fr  Roxbury  to  Boston 

116 
D.  June  5,.  1S49  O  O 

A.      "     6,  1849 


91.5-118        Jas  Cunningham 
Sept.  30,       &  David  Cross 
1863  to 


$1333L« 


John  Q.  Henry 

H  &  A 
WD 

>> 

ex  any 

>> 

incs  wh  may 

hv  been  md 

>) 

or  suffrd 

by  sd  Henry 

or  his  reps 

D. 

&  ex  txs  for 

A. 

1862  &  1863 

D&H 

uxDC? 

Catherine  H. 

Ack.  ? 

ux  J.  C. 

Pel  Id  in  Roxbury  cont  102400  sq  ft  ± 
Beg  by  Id  Wm  Thomas  on  Centre  St 
thn  r  SW  116  to  Saratoga  St 

NW  by  said  Saratoga  St  316-3 

to  Trenton  St 
NE  by  Trenton  St  abt  200  to 

Id  Wni  Thomas 
SE  by  Id  sd  Wm  Thomas  320  to 
p  of  b 


Sept.  30,  1863  O  O 

"      30      "by  Catherine  H. 

Wm  Gaskin    J.  P. 


1  The  following  abstract  is  prepared  by  a  title  examiner,  who  may  or  may  not 
be  a  lawyer,  and  presented  to  the  conveyancer  for  the  hitter's  review  and  opinion. 
The  numbers  over  the  dates  of  deeds  are  the  references  to  the  books  and  pages  in 
the  registry  of  deeds.  The  short  notes  in  italics  are  the  examiner's  suggestions  to  the 
conveyancer  of  possible  defects.  An  affidavit  of  notice  of  appointment  of  an  executor 
or  administrator  has  in  Massachu-setts  a  bearing  on  the  liability  of  real  estate  for 
the  payment  of  debts.  Gen.  Laws  (1921),  cc.  197,  202.  The  law  as  to  the  foreclosure 
of  mortgages  will  be  found  in  Gen.  Laws  (1921),  c.  244.  Needless  to  say  the  title 
is  defective.     A  Ust  of  abbreviations  follows: 


H.  =  heir 

A.  =  assigns 

WD  =  warranty  deed 

D.  &  H.  =  dower  and  homestead 

Ux  =  wife 

D.  =  dated 

A.  =  acknowledged 

O  =  seal 

J.  P.  =  justice  of  the  peace 

N.  P.  =  notary  public 

Beg.  =  beginning 

r.  =  running 

Bn.  =  Boston 

Jour.  =  Journal 

BUT.  =  sureties 


App.  =  approved 

Aff.  =  affidavit 

Fmly.  =  formerly 

Rox.  =  Roxbury 

n.  or  1.  =  now  or  late 

md.  =  made 

QcD  =  quit  claim  deed 

dwhse  =  dwelling  house 

S.  &  A.  =  successoi^  and  assigns 

Ev.  =  evidence 

Rec.  mtg.  =  recites  mortgage 

dd  =  deed 

c  =  claims 

Evng  Trans.  =  Evening  Transcript 


799 


800  ABSTRACT  OF  TITLE  IN  MASSACHUSETTS 

Mtg 

915-119  9500  as  foil,  1500  in  1  yr  &  2000  for 

Sept.  30,       Mtg  back  ux  Jane  S.         4  sue  yrs-6  % 

1863  D.  Sept.  30,  1863 

A.      "      30,  1863  OO 


1031-250  Asst  to  Jas  Watts  &  Sam  Cook  H  &  A  800  (amt  now  due) 

Oct.  30,  D.  Oct.  29,  1868 

1868  \  A.    "      30    "  OO 

Saml  Jennison  J.  P. 


1034-260  Dischgd  to  Jane  S.  Henry  ux  John  Q.  H  &  A 

July  6,  by  S.  C. 

1876  D.  Jun.  10,  1876 

A.    Jul.    5,  1876    A.  C.  Clark    J.  P. 


1475-73        John  Q.  Henry         $1,  etc.  Ld  &  bldgs     (sm  as  915-118) 
Dec.  15,                 to 

1885  Israel  H.  Allen         H  &  A  D.     December  12,  1885  Q  O 

WD  A.  "  15,    " 

ux         Jane  S.  Jas  Muster     J.  P. 

Suff.  #33545 

Israel  H.  Allen  Boston  d.  Oct.  28,  1893  leavg 
Lulea  C.       "         widow 
Henry  D.     "         son 
Frank  D.      " 

Annie  L.  Howe  ux  Chas.  M.  dau-Watertown 
Will  &  Codicil 

1.  To  my  wife,  Lulea  C.  Allen  2000  in  stocks  &  bonds 

2.  To  ea  of  my  3  bros  100. 

3.  To  my  sd  wife  1/3  of  residue 

4.  To  my  childn  remainder,  share  and  share  alike 

Testy  clause  O.  K.  3  wits. 
Nov.    1,  1893     Petn  Henry  D.  Allen  &  Frank  D.  Allen  tht  will  &  cod 
be  alld  &  letters  test  issued 

Cit  Bn  Jour  Ret  Nov.  18,  1893 

Nov.  18,  1893     Granted 
"       "      "        2  bonds     20000  ea        no  sur  App. 

"       "      "        Letter        Bn  Jour 
Dec.  18,  1893     Aff  ntc  of  Appointmnt  Bn  Jour. 

May  29,  1894     Inv  R  19197.  P  16125.09 

Lot  in  Cemetery  at  Chicopee  25 

Hmstd  No.  329  Centre  St.  Boston  19172 
June  19,  1894  Allnc  to  widow  Pers  to  amt  of  1000, 
Legacies  pdf        No  acct? 


ABSTRACT  OF  TITLE  IN  MASSACHUSETTS 


801 


1925-275 

Lulea  C.  Allen  wid  Bn 

SI,  etc. 

Jan  27, 

Henry  D.  Allen 

Rel 

1895 

Frank  D.  Allen 

D&  H 

Annie  L.  Howe  ux  Chas  M. 

&  curtsy 

Watertown 

Ann  ux  Henry  D. 

Frank  D.  unm 

W  D 

to 

Isaac  A.  Hatch 

H&  A 


Pel  Id  &  bldgs  in  tht  pt  of 
Bn  fmly  Roxbury 
SW  on  Saratoga  GO 

XW  "  Trenton  100 

NE  "  Id  n  or  1  Alden  abt  60 
SE    "  Mt  Ida  100 

See  pi  of  est  in  Bn  belonging 
to  Israel  H.  Allen  md  by 
A.  F.  Xoyes  dt  July  1,  1887, 
Suff  PI  Bk  52-375 
Being  pt  of  prcm  cvy  to  sd 
Israel  C.  Allen  by  John  Q. 
Henry,  dt  Dec  12,  1885,  Suff 
Dds  1475-73 


D.  January  27,  1895  (6  Seals) 

A.      "        "        "      H.  D.  A. 

John  Cox  J.  P. 

1993-103 

Isaac  A.  Hatch 

$1,  etc. 

Ld  &  bldgs        (sm  as  1925-275) 

Jan  19, 

to 

D&'H 

1896 

Woldman  &  Co.  a 

QcD 

D.  Dec.  13,  1895                  OO 

Corpn  undr  laws 

A.  Jan.  18,  1896 

Com'lth  Mass. 

S&A 
ux  Mary 

2206-1 

Woldman  &  Co. 

•SI,  etc. 

Ld  &  bldgs  in  Rox  di.st  of  Bn 

Dec.  20, 

Mass.  Corp 

QcD 

SW  on  Saratoga                 60  zh 

1905 

to 

NW  "  Trenton                  100 

John  Munroc  of  Bn 

H&A 

NE  "  Id  f  Alden  n  or  1  Thomas  60 ± 

Ack? 


2948-18 

John  Mimroe 

$1,  etc. 

Apr  3, 

of  Bn 

1910 

to 

QcD 

John  Munroe  & 

H&A 

James  Steele 

D&II 

Ann  C.  ux 

Cont  abt  6000  sq.  ft. 

Woldman  Co.  by  J.  S.  Wood,  Pres 

D.  Dec.  15,  1905 

A.     "       "      "  J.  S.  W. 

Ld  &  bldgs  in  tht  pt  of  Bn  fmly  Rox 

shn  on  a  pi  by  A.  F.  Noyes  dt  July  1, 

1887,  Suff  PI  Bk  52-375  bnded 

SW  on  Saratoga  St  60 

NW  "  Trenton     100 

NE    "  Id  n  or  1  G.  E.  Alden  ubt  t)0 

SE     "  Mt  Ida  St  abt  100 

Being  prem  evd  to  me  by  Woldman  Co.  by 

2206-1  «fc  being  hrby  eyd  .<;ubj  to  follg 

restns,  wh  shl  rem  in  force  fur  tnn  of 

10  yrs  fr  (It  of  Ihs  di'cd,  viz: 

No  bldg  .shl  be  erected  or  pled  thron 

oth  thn  one  dwhsc  adajited  to  u.se  of 

one  family  only.    Xo  lise  shl  bo  crctd 

or  i)led  thron  costng  less  thn  5000,  nor 

nearer  thn  20  ft  to  .sd  Saratoga  St. 

It  being  hrby  agrd  tlit  th  hlili/  now 
stndg  thron  shl  never  be  used  for  any 


802 


ABSTRACT   OF   TITLE   IN    MASSACHUSETTS 


oo? 


mechancl,  foundry  or  manufacturing  purs, 

or  for  any  oth  busns  or  trade  tht  shl 

be  offnsv  to  th  neighborhood  for  dwhses 

or  for  th  keepg  of  live  stock 

D     A     A      1910  O 

A  Apr  3,  1910  Thos  Lee  N  P 


Mtg. 

James  Steele 

2500-3-6 

1  undivided  half  pt 

3568-269 

to 

June  30, 

Chas.  E.  Aldrich 

Ld  &  bldgs  (sme  as 

1915. 

James  Stanley 

2948-18) 

Peter  Paine  trs 
u/w  John  Pike 

•     S&A 

D.  June  30,  1915 

A             ))            )>            >> 

J  S  bef  Thos  Lee 

No  re  dower? 
No  seals? 

3628-142    Ev  possn  Ent  md  May  1,  1918  by  Arthur  H.  Hunt  duly  authorized  atty 
Aug  11,  of  mtgees 

1918  Wits  John  J.  Allen    Abraham  Vose    James  Murphy 

D.  Aug.  11,  1918 

3767-165  We  Chas.  E.  Aldrich,  James  Stanley  &  Peter  Paine,  trustees  undr  will  of 
John  Pike,  hrby  const  &  appnt  Arthur  H.  Hunt  our  true  &  lawful  atty  for 
us  &  in  our  nme  &  std  to  mk  th  statutory  entry  upon  certn  prems  sit  in 
Bn  desc  in  a  certn  mtg  gvn  to  us  as  trs  as  afrsd  by  James  Steele  rec  3568-269 
for  pur  of  foreclosg  sd  mtg  for  breach  of  condth  throf. 
Hrby  grntg  full  pow  &  auth  to  sgn,  seal,  ack  &  deliver  any  and  all  deeds  or 
other  insts  wh  he  may  deem  necsry  or  propr  in  the  prems. 

D.  Aug.  10,  1918  O  O  O 

A.     "      11     "     CEA&JS 
H.  L.  French 


Rec  mtg  &  auth  upon  deflt  to 
sell  at  pub  auc  1st  pub  ntc 
1  undivided  half  pt  Id  &  bldgs 
in  tht  pt  of  Bn  fmly  Rox 
shn  on  pi  by  A.  F.  Noyes  dt 
July  1,  1887,  Suffolk  Dds 
PI  Bk  52-375 
SW  on  Saratoga  60 

NW  "  Trenton  100 

NE  "  Id  n  or  1  G.  E.  Alden 

abt     60 
SE   "  Mt  Ida  abt        100 
Being  &c  C3'd  to  sd  trstees 
by  James  Steele  3568-269 
&  is  hrby  cyd  subj  to  all 
valid  existg  liens,  restns 
&  all  unpaid  taxes  &  assmnts 
D.  Sep.  7,  1918  O  O  O  trustees 
A.  Same  d.  by  C.  E.  A.  bef. 

John  Smith    J.  P. 


Foreclosure 

Deed 

3767-202 

Chas.  E.  Aldrich 

for  $2500  pd 

Sep.  7, 

James  Stanley 

gr 

1918 

Peter  Paine  trs 

u/w  John  Pike 

H&A 

to 

Mark  A.  Dean 

ABSTRACT  OF  TITLE  IN  MASSACHUSETTS  803 

3767-205  Aff  Chas.  E.  Aldrieh,  James  Stanley,  Peter  Paine  trs  u/w  John 

Pike  dt  June  30,  1918  deflt  in  pymt  of  int.  pub  3  sue  wks  on  10-23 

Stat.  21     &  28  Aug.  1918  in  Bn  Advertiser  a  papr  pub  in  Bn. 

days?        Ntc  will  be  sold  at  pub  auc  on  the  prems  in  Bn  on  Tues  Aug.  31, 

1918  at  3  o'clock  p.m.  all  &  sing  th  prems  cyd  by  sd  mtg  &  desc 

in  sd  mtg  as  foils 

(Sm  Descrptn) 
Sd  prems  will  be  cyd  subj  to  all  unpaid  taxes,  liens,  restns  & 
assmnts 

C  E  A,  J  S,  P  P  trs  &  Mtgees 
Present  holders  of  Said  Mortgage 
Purs  to  sd  ntc  &  at  tm  &  pic  thrin  appntd  on  th  prems  sold  th 
prems  at  Pub  Auc  by  Geo  N.  Goodrich,  duly  he  auctnr,  to  Mark  A. 
Dean  for  2500  highest  bid 

D.  Aug.  11,  1918    C  E  A,  J  S,  P  P  trs  as  afsd  O  O  O 

Sworn  to  Aug.  11,  1918  James  Wheeler    N  P 

One  undivided  half  part  of  Id  &  bldgs 
in  tht  i)t  of  Bn  fmly  Rox 

(Sme  desrptn  as  2948-18) 
Being  prems  cyd  by  my  dd  to  James  Steele 
&  myself  rec  2948-18  &  they  are  now  cyd 
wth  benf  of  &  subj  to  th  restns  thrin  set 
forth. 

D.  Dec.  22,  1918  O 

A.  Dec.  22,  1918         Thos.  Lee        N  P 

Suff.  #190603  Mark  A.  Dean  Bn  d  June  28,  1920 

Elizabeth  T.  Dean  widow 
Mary  E.  Cutter  ux  G.  R.  dau  Fitchburg 
John  E.  Dean    son        Springfield 
Will 

1.  Pymt  of  debts  &  c 

2.  Wf  Ehzabeth  T.  Dean     (pcrs) 

3.  To  Dean  Academy  of  Burlington,  Vt.  50000  wth  int  at  6  '^  fr  dy  of 
my  dec  to  be  added  to  th  permanent  fund  »fc  incm  used  for  cur  ex- 
penses. 

4.  To  Mary  J.  Field  ux  David  M.  5000  &  pers 

5.  To  John  Harding  3000 

6.  To  Mrs.  Hannah  Flint  dau  sd  John  4000.  In  case  of  her  dec  to  her 
childn 

7.  To  James  Adams  5000 

8.  Residue  in  trust  for  ux  for  life,  remainder  to  various  institutions. 

9.  FuU  pow  of  sale  to  exors  &  trustees 


3809-100 

John  Munroe 

1  &c 

Dec.  23, 

to 

H  6i  A 

1918 

Mark  A.  Dean 

WD 
D&H 

ux 

AnnC. 

804  ABSTRACT  OF  TITLE  IN  MASSACHUSETTS 

July  10,  1920     Petn  Jos.  H.  Cotton,  Timothy  H.  Sawyer  &  Chas  E.  Hill 
tht  w  be  alld  &  lettrs  test  issued  to  them  without  sur 

Cit  Bn  Evng  Trans  Ret  Aug  1,  1920 

Aug  1,  1920     Granted  Bn  Evng  Trans 
Aug  3,  3  bonds  1000000  ea  no  sur 

Aff  ntc  of  appointmt  (none) 

Oct  13,  1920    Inv.  R.  454000  P  25000 

Acct. 

Showing  all  legacies  pd  .    (not  allowed) 

Trust. 

Aftr  pymt  of  all  debts  and  expenses  and  legacies  herinbef  ment,  1  g,  d  and 
b  th  remdr  of  my  est,  re,  per  &  mixed  of  whatevr  nme  and  nature  and 
whrsoevr  sit  unto  sd  trs,  to  pay  1/2  th  net  inc  to  my  wf,  Elizabeth  T.  Dean, 
durng  her  nat  life  and  on  her  dth  th  sd  1/2  to  become  pt  of  residue. 
The  othr  1/2  of  sd  net  incm  I  g,  d  and  b  to  the  follg  insts  in  equal  shrs. 
Natural  History  Society,  Winchester  College,  Boston  School  of  Fine  Arts. 
Boston  Mechanical  School  and  Hospital  for  Women  &  Children.  Upon 
the  death  of  my  sd  wife  the  whole  of  said  tr  propty  shl  be  pd  over  to  the  abv 
nmd  instutns  in  equal  amts. 

Testy  clause  O.  K.        3  wits. 


INDEX 


Abstract  of  Title,  799 

Acceptance,  656-665. 

Accretion,  1-24. 

Acknowledgment,  653. 

Adverse  Possession,  25-94;  actual, 
open,  exclusive,  continuous,  66n.," 
burden  of  proof,  66n.;  by  lessee,  53; 
by  licensee,  44;  by  life  tenant,  56; 
color  of  title,  68,  71n.,  76n.;  con- 
structive, 68-79;  constructive,  tack- 
ing, 79n.;  constructive,  true  owner, 
79n.;  conveyance  of  lands  in,  67n.; 
disabilities,  25-32  passim,  90;  ex- 
tent of  claim,  44-53;  extinguish- 
ment of  public  way  by,  67n.;  mis- 
take, 62-67;  nature  of  title  by,  34n.; 
partition,  459n.;  public  easements, 
793,  797;  recording  acts,  38n.;  rever- 
sioners and  remaindermen,  48-57, 
57n.;  tacking,  79n.,  80-89;  void 
deed,  62;  way  of  necessity,  38n. 
See  Dedication;  Tacking. 

Appurtenances,  471,  529,  530;  ease- 
ments and  profits  as,  159-160;  land 
as,  158. 

Bargain  and  Sale,  146. 

Boundaries,  161-181;  courses  and 
distances,  168-173n.;  monuments, 
161-173;  on  lakes  and  ponds,  24n.; 
on  water,  173-179;  on  ways,  180; 
quantity,  173n. 

Burden  of  Pr(jof,  adverse  posses- 
sion, 66n.;    prescription,   141 

Cancellation  deeds,  665n. 

Choses    in    Action,    assignment    of, 

580-585. 
Color  of  Title,  prescription,   143n. 

See  Constructive  Adverse  Possession. 
Common,  471. 

Consideration,  recital,  156. 
Constructive  Adverse  Possession, 

68-79;   color  of  title,  68,  7 In.,  76n.; 

tacking,  79n.;    true  owner,  79n. 
Conveyance,  form  of,  155. 
Conveyances,    by    record,    144;     by 

special  custom,  145;    form  of,  144- 

157;   tortious,  146-149. 


Copyhold,  145. 

CoRPORATio.vs,  feoffment  in  fee  to,  184. 

CovEN.^NT,  to  stand  .seised,  146; 
See  Landlord  and   Tenant. 

Covenants  for  Title,  breach,  553n.- 
554n.;  broken  covenants,  .565-585; 
by  strangers  to  title,  58(5-600 ;  dam- 
ages, 553n.-554n.;  estoppel  by, 
554n.;  running  with  land,  555-<)0b; 
running  with  possession,  58j^-()00; 
who  may  sue,  555-565.    See  Estoppel. 

Dedication,  788-798. 

Deeds,  cancellation,  665n.  See  Sign- 
ing; Sealing;  Delivery. 

Delivery,  acknowlegincnt,  653;  es- 
crow, unauthorized  transfer  out  of, 
647;  escrow  to  agent  of  grantee, 
612n.;  escrow  to  grantee,  612-617; 
escrow,  relation  back,  625-(i41 ;  gran- 
tor retains  deed,  652-655;  record- 
ing, 654;  right  to  recall,  641;  to 
stranger    for    grantee,    617-652. 

Desciui'Tion  of  Property,   158-181. 

Disability,  acceptance  by  grantee 
under,  665n.    See  Adverse  Possession. 

Disseisin,  38-48,  53,  58,  60,  62.  See 
Partition. 

Easements,  created  by  reference  to 
use,  528-537;  by  words  of  reserva- 
tion or  exception,  538-552;  light 
and  air,  HI,  114,  118;  public,  793, 
797;  registration,  745;  way  of 
necessity,  38n.  Hee  Easenunts,  Im- 
plied; Prescription. 

E.\skments,  Lmplikd,  apparent,  .')00- 
511,  521;  condemnation  proceed- 
ings, 476n.;  continuous  and  a{>- 
parent,  500-511;  escheat,  476n.; 
execution,  476n.;  granted,  501); 
land  sold  by  plan,  519;  liglit  and 
air,  iTS,  5U\;  purchasers,  526;  re- 
ciprocal, 478;  reserved,  474-500; 
simultaneous  transfers,  51 1-516,  521 ; 
support,  478;  way  of  necessity, 
472,  474-477,  576. 

Elegit,  Est.\te  by,  195. 

Enrolments,  Statute  of,  146. 


805 


806 


INDEX 


Estoppel  by  Deed,  702-787;  regis- 
tration, 780-786;  statute  of  limi- 
tation, 7 7 In.;  warranty,  761,  769, 
771n.,  780,  783. 

Eviction.     See  Covenants;    Rents. 

Escrow.    See  Delivery. 

Exception.    See  Easements. 

Exchange,  155. 

Executory  Interests,  765n. 

Expectancy,  Sale  of,  771n. 

Fee  Simple,  Estate  in,  heirs,  182-185. 
Fines,  144. 

Further  Assurance,  Covenant  for, 
553,  569,  77  In. 

Habendum,  552n. 

Incumbrances,  Covenant  against, 
553.    See  Covenants  for  Title. 

Joint  Ownership,  actions,  428n.;  buy- 
ing outstanding  titles,  429-435;  con- 
veyance by  metes  and  bounds,  420- 
428,  467;  liability  for  use,  or  misuse, 
to  other  co-tenant,  435-446;  personal 
property,  470n.;  repairs,  436-453n.; 
reparatione  facienda,  436,  447;  ser- 
vices of  co-tenant,  441-446;  words 
creating,  421n.     See   Partition. 

Joint  Tenants.    See  Joint  Ownershij). 

Landlord  and  Tenant,  attornment, 
289;  covenants,  230-266;  cove- 
nants, eviction,  264-266;  covenants 
to  pay  taxes,  252;  covenants  im- 
plied, 230-238,  266n.,  309;  cove- 
nants, dependency  of,  257-266;  ex- 
tension of  lease,  225;  lease  in  Mass., 
197;  permissive  waste,  238-252; 
surrenders,  372-420;  use  and  occu- 
pation, 29.5-296;  See  Rents,  Year 
to  Year,  Estate  from. 

Life,  Estate  for,  188-192. 

Light  and  Air,  111,  114,  118,  473, 
516. 

Limitation,  Statutes  of,  25-32,  81n. 
See  Adverse  Possession;  Prescription. 

Lis  Pendens,  728. 

Mortgage.     See  Registration. 

Non-Claim,  Covenant  of,  77ln. 
Notice.     See  Registration. 

Original  Acquisition,  1-24. 

Partition,  discharge  of  obligations, 
463n.;     creditors    and    mortgagees. 


46.3-470;  dis.sei.sin,  453-4.54;  evic- 
tion by  paramount  title,  4.54;  im- 
provements, 460;  land  held  ad- 
versely, 459n.;  nature  of  deed  of, 
453n.;  parol,  4.53;  repairs,  453n.; 
writ  of,  453,  455,  456n.  See  Joint 
Ownership. 

Possession,  Adverse,  25-94.  See 
Adverse  Possession. 

Prescription,  95-143;  Act,  114n.; 
burden  of  proof,  141;  color  of  title, 
143n.;  currents  of  air,  109;  history 
of,  95-97,  101-102;  interruption, 
142n.;  light  and  air.  111,  114,  118; 
reversioners  and  remaindermen, 
111-118. 

Probate,  summary  in  abstract,  800, 
803. 

Public,    rights    in.      See    Dedication. 

Public  Grants,  145. 

Quiet  Enjoyment,  Covenant  for, 
266n.,  .553.  See  Covenants  for  Title; 
Rents. 

Quit  Claim  Deed,  693-700,  771n. 

Recording,  deUvery,  654;  See  Reg- 
istration. 

Recording  Acts,  665-669;  adverse 
possession,    38n.      See   Registration. 

Recoveries,  144 

Registration,  abstract  of  title,  799; 
actual  notice,  727n;  as  notice,  670- 
690;  creditors,  667,  669,  670-673; 
deed  of  ancestor  unrecorded,  691; 
easements,  745;  equities,  670-673; 
errors  in,  675-687;  estoppel  by 
deed,  780-786;  index,  677-687;  lis 
pendens,  728;  marshalling,  748- 
759;  mortgages,  667-669,  682,  688, 
701,  748-759,  802,  803;  notice,  700- 
727;  not  in  chain  of  title,  737-748; 
prior  purchasers,  688;  quitclaim 
deeds,  693-700;  restrictive  cove- 
nants, 743;  unacknowledged  deed, 
674;  unrecorded  deeds,  691-700; 
statutes,  666-669;  Torrens  sj'stem, 
759n. 

Releases,  1.50-153. 

Remainder,  contingent,  57n.,  554, 
763,  765n.;  vested,  57n. 

Rents,  266-371;  apportionment  in 
time,  303;  constructive  eviction 
by  landlord,  334-335;  destruction 
of  premises,  323-328;  effect  of  acts 
of  the  government  on,  312-322: 
eviction  by  landlord,  329-334;  evic- 
tion by  paramount  title,  207-311; 


INDEX 


807 


failure  to  obtain  possession,  355-365; 
for  life,  278-280;  kinds  of,  26G-269; 
king's  enemies,  322;  merger,  365- 
372;  rights  and  liabilities  of  assign- 
ees of  lessor  and  lessee,  280-295; 
tenant  in  fee,  270-279;  what  pay- 
ments are,  297-302. 

Reparatione  Facienda,  436,  447. 

Reservation,  See  Ease?nenls,  Implied. 

Reversioner,  right  to  sue,  113n.; 
See  Adverse  Posssesion;  Prescription. 

Right  to  Convey,  Covenant  of,  553. 
See  Covenants  for  Title . 

Seals,  603-611;  summary  of  statutes, 
607n. 

Seisin,  livery  of,  146;  covenant  of, 
553.    See  Covenants  for  Title. 

Signing,     601-605 

St.\tute   of   Enrolments,    146. 

Statute  of  P^rauds,  148,  214-223. 

Statute  Merchant,  Estate  by,  194- 
196. 

Statute  Staple,  Estate  hy,  194- 
196. 

Statutes.    See  Table  of  Statutes,  xi. 

Statutes  of  Limitation,  25-32,  81n., 
771n.;  disabilities,  25-32,  90;  oper- 
ation of,  32-38.  See  Adverse  Pos- 
session. 


Surrenders,  154;  by  operation  of  law, 
372-420. 

Tacking,    adverse    possessions,    79n., 

80-89. 
Tail,  Estate  in,  186-187;  in  term  for 

vears,   193n.;    tortious  conveyance, 

147-149. 
Tenants    in    Co.mmon.      See    Joint 

Ownership. 
Torrens  System.    759n. 

Warranty,  Covenant  of,  553,  771n. 
See  Covenants  for  Title;  Estoppel  by 
Deed. 

Waste,  Permissive,  238-252. 

Waters,  1-24;  boimdarieson,  173-179. 

Ways,  boundaries  on,  ISO.  Sec  Ease- 
ments; Easements,  Implied. 

Will,  Estates  at,  193-194,  198-225 
passim;  termination  of,  224-225. 
See  Year  to  Year,  Estate  from. 

Years,  Estate  for,  193-194;  exten- 
sion by  holding  over,  225.  See 
Landlord  and  Tenant. 

Year  to  Ye.\r,  Estate  from.  198- 
224;  agreement  to  lease,  207-211; 
holding  over,  200-206,  218;  void 
lease,  214-223,  218n. 


i.lERARY 
.UiV4>^*v,uAiA  O^'  CALIFORNU; 
LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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